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Document
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M-1121
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Institution/HIC
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Woodstock Police Services Board
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Summary
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NATURE OF THE APPEAL: The Woodstock Police Services Board (the Police) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to copies of tape recorded anonymous phone calls to the Police, on December 10, 12, 13, 16 and 19, 1997, in relation to complaints regarding the requester's restaurant. The Police denied access to the records pursuant to sections 8(2)(a), 8(2)(c) and 14(1) of the Act . The requester (now the appellant) appealed this decision. During mediation, the Police indicated that no tape existed for the December 10, 1997 date, but agreed to create a transcript of the responsive portions of the four remaining tapes, and disclosed the transcript to the appellant. As a result, the exemptions originally claimed by the Police are no longer at issue in this appeal. The transcript indicated that certain portions of the tapes were "unheard". The appellant expressed concern about these portions, and also that no tape for December 10, 1997 was located. When the Appeals Officer inquired as to the possibility of reviewing the original tapes, the Police informed her that they had been destroyed. A Notice of Inquiry was sent to the Police and the appellant. The Notice specifically asked the Police to provide an affidavit outlining all steps undertaken to locate responsive records, explaining the "unheard" portions of the tapes, and outlining why the original tapes had been destroyed during the processing of this appeal. Representations were received from both parties. The Police did not provided the requested affidavit. DISCUSSION: REASONABLENESS OF SEARCH Where a requester provides sufficient details about the records which he or she is seeking and an institution indicates that such 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 institution to prove with absolute certainty that the requested records do not exist. However, in my view, in order to properly discharge their obligations under the Act , the institution 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. The appellant's request is quite specific, as are his areas of concern with the response of the Police. He is not satisfied with the steps taken by the Police to locate the responsive tape for December 10, 1997, and the fact that there are certain "unheard" portions of the other tapes make him question whether further responsive records might exist. I will deal first with the December 10, 1997 tape. The Police explain that all calls received at the dispatch consoles are continuously recorded. These include both 911 telephone calls and all radio equipment operated by the Police. If a call is received at the console and transferred to an administrative phone line, recording ends at the point of transfer. Administrative phone lines are not recorded. The officer who dealt with the December 10 call involving the appellant's restaurant recalls that the conversation took place on an administrative phone line. This officer does not recall whether the call was made directly to the administrative line or transferred there from the dispatch console. After completing the call, the officer logged a "non reportable incident" computer entry at 8:10 pm. The Freedom of Information Co-ordinator for the Police (the Co-ordinator), who conducted the search for responsive records, states that he reviewed the original December 10, 1997 tape between 7:00 p.m. to 9:00 p.m and was unable to locate any call involving the appellant's restaurant. A Civilian Radio Operator also reviewed the same tape on behalf of the Police, with the same result. In my view, the Police have provided a satisfactory explanation for why they were unable to locate a responsive tape for December 10, 1997, and I find that the search conducted by the Police for this record was reasonable. As far as the other four dates are concerned, the Co-ordinator has provided me with a step by step explanation of how the relevant portions of the original tapes for these dates were identified and copied to a cassette. He submits that the cassette is an accurate reproduction and of the same quality as the original tapes, and that the cassette "can be certified under oath as true copies". The Police attribute the various "unheard" portions as being caused by "background noise", mumbling or talking away from the phone. The one "unheard" portion on the December 13, 1997 tape which is of particular concern to the appellant, is explained as "some electrical static which may have been caused by a radio mike in the dispatch centre being keyed for use". The Police initially provided this office with a cassette, which turned out to be incomplete; it only included the first recorded call on the December 12 transcript. Our office asked for and received a second cassette. I have listened carefully to both cassettes. The actual content of the first recorded call on December 12 is the same on both cassettes, but the audio quality is different, and the gaps between the caller and police officer during the December 12 conversation are significantly longer on the second cassette. If the second cassette was created from the same source as the first cassette, I am unable to understand why there would be a difference in either quality or, more importantly, the length of the gap between speakers. The Police have provided no explanation for these discrepancies. In my view, one possible explanation is that the two cassettes were not created from the same master tape. If this were the case, then the Police may be in possession of other responsive records not yet identified. Consequently, having reviewed the representations and carefully listened to the two cassettes provided to me by the Police, I am not satisfied that the search conducted by the Police for these records was reasonable. COPY OF REQUESTED RECORDS Section 23 of the Act outlines obligations on the part of an institution in providing access. This section reads as follows: (1) Subject to subsection (2), a person who is given access to a record or a part of a record under this Act shall be given a copy of the record or part unless it would not be reasonably practicable to reproduce it by reason of its length or nature, in which case the person shall be given an opportunity to examine the record or part. (2) If a person requests the opportunity to examine a record or part and it is reasonably practicable to give the person that opportunity, the head shall allow the person to examine the record or part. (3) A person who examines a record or a part and wishes to have portions of it copied shall be given a copy of those portions unless it would not be reasonably practicable to reproduce them by reason of their length or nature. In my view, one other issue in this appeal is whether the Police have properly discharged their obligations under section 23. I
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Legislation
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Subject Index
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Published
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Jun 12, 1998
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Type
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Order
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