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Document
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M-275
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Institution/HIC
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City of Peterborough
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Summary
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ORDER On January 4, 1994, the undersigned was appointed Inquiry Officer and received a delegation of the power and duty to conduct inquiries and make orders under the provincial Freedom of Information and Protection of Privacy Act and the Municipal Freedom of Information and Protection of Privacy Act . The City of Peterborough (the City) received three requests under the Municipal Freedom of Information and Protection of Privacy Act from three individuals for access to all records which contain their personal information, including records within six named departments of the City. The City responded by stating that the City has "no files containing personal information" of any of the three requesters. The requesters appealed this decision. In the letter of appeal the appellants asserted that the City had hundreds of pages of records containing their names and address. During mediation, the appellants confirmed that the City had provided them with the above-mentioned records in response to a previous request and appeal (Appeal M-910244, Orders M-59 and M-76). Appeal M-910244 concerned a request for information regarding a particular address. The City took the position that all records within its custody or control relating to the appellants were previously dealt with in Appeal M-910244, and that none of these records contain the personal information of the appellants. Further mediation was not successful and notice that an inquiry was being conducted to review the City's decision was sent to the City and the appellants. Representations were received from the City only. Prior to proceeding to inquiry, the three appellants submitted written authorizations for one appellant to act as agent for the other two. The sole issue to be decided in this inquiry is whether the City has conducted a reasonable search for responsive records. The Act does not require the City to prove with absolute certainty that the requested 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 which shows that it has made a reasonable effort to identify and locate records responsive to the requests (Orders P-457 and M-148). In the Notice of Inquiry, the City was asked to respond to specific questions relating to the steps taken to search for records responsive to the requests and to submit an affidavit sworn by the employee of the City who conducted the search. In its representations, the City provided an affidavit from the City Clerk, who is also the Freedom of Information Co-ordinator for the City. With respect to the steps taken to search for records responsive to these requests, the City Clerk states: I was already familiar with all of the material contained in the files of the various departments identified in the requests, because these requests related to the same files which were the subject of numerous previous requests for information on the part of the requesters. The most recent requests were different only in their reference to "personal information". ... I had, in December of 1992, personally obtained and carefully reviewed all of the relevant departmental files and produced materials for release to the requesters in January, 1993. I have also satisfied myself that no additional records were created, between December, 1992, and May, 1993, in any of the relevant departments, which would contain personal information related to any of the requesters, by discussing the requests with City staff responsible for the maintenance of each such file. The City Clerk maintains, in his affidavit, that none of the records in the City's custody or control contain the personal information of the appellants. In my view, the City's search for records conducted with respect to the appellants' previous requests was not directed at searching for records which contain personal information, but was directed at information relating to a particular address. In Order M-254, Inquiry Officer John Higgins addressed the situation where an institution chose to rely, in part, on searches conducted with respect to a previous request. He stated: In some circumstances that would not, in my view, constitute a reasonable search. However, in this appeal, the previous request was submitted only a few months prior to the present request, and it is clear that the requested record falls within the ambit of the previous request as clarified. I agree that there may exist situations where relying on a previous search is reasonable. In my view, however, this is not one of those situations. The City asserts that the current requests were different only in their reference to "personal information". This is not a minor distinction. Nor is the information requested necessarily a subset of the information previously requested, in that the requests which are the subject of this appeal do not restrict the search to records relating to the particular property. In my view, there must be some evidence that the person conducting the search for records responsive to these requests has turned his or her mind to the specific category of information requested. The City failed to provide evidence that it has turned its mind to this category of information. Rather, it has made an assumption that, as it had dealt with requests relating to general information concerning the appellants' property in the past, there was no need to investigate further to determine whether it also had records which might contain personal information relating to these individuals. I am, therefore, of the view that the City's reliance on previous searches for records responsive to these requests was not reasonable in the circumstances. The circumstances in this inquiry are somewhat different from the usual situation involving the reasonableness of the search conducted for responsive records. In this case the City has previously identified records containing information about the appellants. In Order M-59, some of the information was described as: ... memoranda between the City Solicitor and Fire Prevention Officers, or vice versa, providing advice or commentary in relation to possible prosecution for [various requirements under the Fire Code, Fire Marshall's Act, or other provincial legislation]. The records relating to Appeal M-910244 include correspondence and inspection files regard
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Legislation
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Subject Index
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Published
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Feb 24, 1994
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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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