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Document
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M-1106
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Institution/HIC
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Regional Municipality of Waterloo
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Summary
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NATURE OF THE APPEAL: The Regional Municipality of Waterloo (the Region) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ). The request was for access to records relating to a construction firm owned by the requester which had performed a large project for the Region in 1996 and 1997. The Region located a large number of records responsive to the request and granted access to the majority of them, upon receipt of the requested fee. The Region and the requester agreed to limit the scope of the request to exclude records which were already in the possession of the construction firm, any records relating to two insurance claims, the contract document under which the work was performed and the transcript of a meeting held between the Region and the requester in July 1996. The Region denied access to the remaining responsive records, or parts thereof, based on the following exemptions contained in the Act : closed meeting - section 6(1)(b) advice or recommendations - section 7(1) third party information - section 10(1)(b) solicitor-client privilege - section 12 The requester, now the appellant, appealed the Region's decision to deny access under the exemptions claimed and also indicated that he believed that additional records responsive to his request should exist. This office provided a Notice of Inquiry to the appellant, the Region and to 18 other individuals or companies whose rights may be affected by the disclosure of the information contained in the records (the affected parties). Written submissions were received from the Region and two of the affected parties. Two other affected parties verbally consented to the disclosure of their information to the appellant. Their information is contained in the severed portion of Record R-1(a), a letter dated September 13, 1996 from the managing consultant on the project to the Region. Following the receipt by this office of the parties' representations, the Region advised that it had located a number of additional records responsive to the request. These records were located in the files relating to the project which were maintained by employees of the Region's Engineering and Legal Divisions. The Region has applied sections 6(1)(b), 7(1) and 12 to exempt these records from disclosure. Because they are responsive to the request, I will address the application of the exemptions claimed to these records, as well as those originally identified. The Region also advised this office that it was no longer relying on the section 12 exemption for Record E-2. As no other exemptions were claimed for this record and no mandatory exemptions apply, it should be disclosed to the appellant. RECORDS: The numbering system for the records which was provided to me by the Region is confusing and contradictory. In the Index which I have prepared and attached to this order as an Appendix, I have renumbered the records to clarify exactly which remain at issue, in whole or in part, and the exemptions claimed for each. I have continued with the identification used by the Region for Record Categories B, C and E and will use the prefix "R" to identify the records relating to reference checks undertaken by the Region. Records located during the Inquiry process (the new records) in files maintained by the Engineering Department are identified by the prefix "N" and the records located in the files of the Region's Legal Department are designated with an "L". Some of the records are copies of each other and reference to these duplicates are indicated in the appended Index. DISCUSSION: REASONABLENESS OF SEARCH By letter dated February 11, 1998 and addressed to the Region, the appellant described in detail the basis for his contention that additional records responsive to the request should exist. Specifically, the appellant makes reference to records which may have been maintained by other staff at the Region during the course of the construction project. Where a requester provides sufficient details about the records he or she is seeking, it is my responsibility to ensure that the Region has made a reasonable search to identify any records which are responsive to the request. The Act does not require the Region to prove with absolute certainty that the requested records do not exist. However, in order to properly discharge their obligations under the Act , the Region must provide me with sufficient evidence to show that they have made a reasonable effort to identify and locate records responsive to the appellant's request. A reasonable search would be one in which an experienced employee expending reasonable effort conducts a search to identify any records that are reasonably related to the request (Order M-909). The Region was asked to provide a written summary of all steps taken in response to the appellant's request. The Region reports that the Senior Project Manager involved in the project undertaken by the appellant's firm was contacted by the Freedom of Information and Privacy Protection Co-ordinator (the Co-ordinator) to assist in locating the responsive records in the Region's Design and Construction Division, the Water Services Division, the insurance claim files and the Region's solicitor's files. Following the receipt of the Notice of Inquiry, the Region conducted additional searches of the records maintained by the individuals named in the appellant's February 11 letter. Additional records were located in the files of the Supervisor of Environmental Engineering and the Legal Department (the N and L records). The Region also provided affidavits from its Co-ordinator and the Senior Project Manager describing in detail the nature and extent of the searches which they undertook and the contacts made with other staff of the Region in order to locate responsive records relating to the appellant's involvement with the construction project and the administration of the contract generally. The appellant has not provided any submissions with respect to the issue of the reasonableness of the Region's search beyond the information contained in his February 11 letter. Based on the information provided to me by the Region, I am satisfied that the searches which it has undertaken for records responsive to the request, as narrowed by the appellant, were reasonable. Accordingly, I dismiss this part of the appeal. CLOSED MEETING The Region has claimed the application of the closed meeting exemption contained in section 6(1)(b) of the Act for Records B-3, B-4, B-5, B-6, B-7, B-8, N-8, L-4, L-11(a) and (b). In order to qualify for exemption under section 6(1)(b), the Region must establish that: 1. a meeting of a council, board, commission or other body or a committee of one of them took place; and 2. that a statute authorizes the holding of this meeting in the absence of the public; and 3. that disclosure of the record at issue would reveal the actual substance of the deliberations of this meeting. [Order M-64] The first and second parts of the test for exemption under section 6(1)(b) require the Region to establish that a meeting was held and that it was held in camera [Order M-102]. The Region was
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Legislation
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MFIPPA
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10(1)(b)
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6(1)(b)
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7(1)
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Section 12
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Subject Index
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Published
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Jun 02, 1998
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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