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Document
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M-685
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Institution/HIC
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City of North York
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Summary
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BACKGROUND: On December 12, 1994 a fire occurred at a property in the City of North York (the City). The City fire department was called to the scene, but unfortunately the fire consumed the house on the property. The next day, reports of the fire appeared in the local press. Firefighters were reported as indicating that water problems caused them to "lose precious minutes" in fighting the blaze. The City states that a Fire Marshall's investigation was conducted and a preliminary report was completed on February 8, 1995. The final report was issued on December 19, 1995. On December 16, 1994, the City received a notice of claim from the adjusters representing the property owner's insurers. The City subsequently received several other notices of claim from other adjusters, insurance companies and solicitors representing various parties who suffered losses in the fire. NATURE OF THE APPEAL: The solicitor for the property owner submitted a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to certain records concerning the property on which the fire occurred. He requested 13 categories of information or documentation related to a watermain which runs in front of the property (the Watermain Records). He also sought access to nine categories of information from the City's fire department (the Fire Department Records). Because of the complexity of this matter, I have set out the details of the request with the corresponding responses from the City in Appendix "A" to this order. The solicitor appealed the City's decision as set out in Appendix "A". A Notice of Inquiry was sent to the City and the solicitor (now the appellant). Representations were received from both parties. At this time, the following issues remain to be resolved in this order: (1) Whether the City conducted a reasonable search for records responsive to the request. (2) Whether Records 1, 2a, 2b, 3a, 3b, 3c, 3d, 4, 6, 7, 8a, 8b, 8c, 8d, 8f, 8g and 8h are properly exempt from disclosure under section 12 of the Act (solicitor-client privilege). (3) Whether Records 9a and 9b are properly exempt from disclosure under section 14 of the Act (invasion of privacy). DISCUSSION: REASONABLENESS OF THE SEARCH The Watermain Records The City's decision was that no records existed in response to items 1, 2, 3, 5, 9, 10 and 12 of the Watermain Records. In its submissions, the City indicated that it had conducted another search for responsive records. As a result of this search, it located an agreement dated January 8, 1946 with respect to the supply of water by the City of Toronto to certain areas in the then Township of North York, including that in which the property is located. The City disclosed this agreement to the appellant. In addition, the City located an operating policy with respect to responses to emergency calls adjacent to municipal boundaries. This was also disclosed to the appellant. The City indicates that these documents are responsive to items 2 and 3 of the Watermain Records. The adequacy of the City's search for records responsive to these items is no longer at issue. With respect to the balance of the Watermain Records, the City has provided an affidavit of the Works Engineer in the City's Public Works Department (the Engineer), who has held this position since 1987. The Engineer states that the watermain construction files were searched. These files include the history card index, plans and profiles and design files. No information was located with respect to the design or construction of the watermain. As indicated, a search of the agreement file in the Clerk's Department located the 1946 agreement. The Engineer states that no other agreements which are responsive to the request were located. Finally, the Engineer states that he searched the low water pressure and the rusty water complaints files. There were no complaints on record for water pressure or quality for the past ten years with respect to the street. In summary, the position of the City at this time is that records responsive to items 1, 5, 9, 10 and 12 of the Watermain Records do not exist. The appellant contends that records responsive to item 1 of the Watermain Records (construction or replacement) must exist as the watermain is within the jurisdiction of the City. The appellant also questions whether it is the position of the City that such documents do not exist or that the City is not in possession of them. In cases where a requester provides sufficient details about the records which he is seeking and the City indicates that records do not exist, it is my responsibility to ensure that the City 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 records do not exist. However, in my view, 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. Based on the affidavit of the Engineer, I am satisfied that the efforts made by the City to determine whether records responsive to item 1 of the Watermain Records exist were reasonable in the circumstances. On the same basis, I am also satisfied with the City's search with respect to the item 12 records (the complaints). The appellant has provided no information to support his claim that any records should exist with respect to this item. I will now consider the matter of the City's search with respect to item 5, test results relating to water pressure or quality. The appellant submits that the City's statement that no records exist is inaccurate. In support of this position, the appellant has provided a copy of the minutes of the City council meeting held on July 12, 1995. The appellant points out that the minutes refer to the following tests: a flow test conducted on the City distribution system by City staff on Decemb
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Legislation
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MFIPPA
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14(3)(a)
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14(3)(d)
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2(1) personal information
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Section 12
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Subject Index
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Published
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Jan 10, 1996
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Type
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Order
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