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Document
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M-832
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Institution/HIC
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Municipality of Metropolitan Toronto
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Summary
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NATURE OF THE APPEAL: The appellant made a two part request to the Municipality of Metropolitan Toronto (the Municipality) under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to copies of various records relating to her. The appellant is an employee of the Municipality. She sought access to her Human Resources file, Area Office file, her Corporate Medical file and any other files which may have been created by the Municipality's doctor and/or ergonomist. She also asked for copies of all supervisory notes relating to her, created by a number of named individuals. Shortly after submitting the first request the appellant made another request for copies of notes and/or files relating to her created by three individuals who had not been named in her first request. With respect to the first request, the Municipality denied access to all supervisory notes, as well as some of the ergonomic information, claiming that, pursuant to section 52(3), the Act does not apply to these records. The Municipality also informed the appellant that no supervisory notes exist in relation to one of the named individuals. The Municipality granted partial access to the other records and denied access to the remaining information under the following sections of the Act : advice to government - section 7(1) invasion of privacy - section 14(1) discretion to deny requester's own personal information - sections 38(a) and (b) With respect to the second request, the Municipality located responsive records relating to the first named individual and denied access in full, claiming that, pursuant to section 52(3), the Act does not apply to these records. The Municipality also advised the requester that no records exist with regard to the second and third named individuals. The appellant appealed the Municipality's decisions. During mediation, the Municipality issued a supplementary decision letter and withdrew its section 7(1) claim and released some of the working notes of the Assistant Ergonomist. The Municipality informed the appellant that the remainder of the Assistant Ergonomist's notes remain exempt subject to section 52(3) of the Act . The Municipality also disclosed six pages of computer generated notes created by the second named individual in the second request. In the Municipality's view, those notes were not responsive to the request. The appellant agreed not to pursue access to the information being withheld pursuant to sections 14 and 38(b). However, she took the position that the Municipality's doctor and/or nurse should have notes which relate to her and that additional records should exist in relation to the second and third individuals named in her second request. The records which remain at issue in these appeals are all the supervisory notes relating to the appellant, as well as some of the notes created by the Assistant Ergonomist. The Municipality has claimed that all of these records are excluded from the scope of the Act by virtue of section 52(3). Section 52(3) raises the issue of the Commissioner's jurisdiction to hear an appeal. This office sent a Notice of Inquiry to the appellant and the Municipality seeking representations on the issues of jurisdiction and reasonable search. The Municipality and the appellant submitted representations. DISCUSSION: REASONABLENESS OF SEARCH Where a requester provides sufficient details about the records which she is seeking and the Municipality indicates that further records do not exist, it is my responsibility to ensure that the Municipality has made a reasonable search to identify any records which are responsive to the request. The Act does not require the Municipality 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 Municipality 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 an institution's response to a request, the appellant must, nevertheless, provide a reasonable basis for concluding that such records may, in fact, exist. With respect to the possible existence of additional medical information, the Municipality has provided me with a letter from the Manager, Health Services of the Compensation, Labour Relations, Health & Safety Division of Corporate and Human Resources. This letter confirms that medical information is stored in a confidential file maintained by the Corporate Health Services Unit. Only one medical file is maintained for each employee and reports or records from consulting physicians are also placed in that file. According to the Municipality this file was produced for the purpose of responding to the appellant's request. Even though the Municipality was convinced that it had completed an adequate search for the records, when the appellant indicated that she believed additional records should exist, a second search was completed. The search did not reveal any additional records. With respect to the possible existence of additional supervisory notes, the Municipality states that it also conducted a second search in this area upon learning of the appellant's belief that additional records should exist. This search did not reveal any additional responsive records, however, 6 pages of computer generated administrative notes which were considered to be non-responsive were located and disclosed to the appellant. The Municipality has explained the steps which it undertook to satisfy itself that its search was adequate. Having reviewed the information submitted to me, I am satisfied that the Municipality's search for records responsive to the appellant's requests was reasonable. APPLICATION OF THE ACT Sections 52(3) and (4) of the Act read: (3) Subject to subsection (4), this Act does not apply to records collected, prepared, maintained or used by or on behalf of an institution in relation to any of the following: 1. Proceedings or anticipated proceedings before a court, tribunal or other entity relating to labour relations or to the employment of a person by the institution. 2.
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Legislation
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Subject Index
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Published
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Sep 10, 1996
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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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