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Document
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MO-1483
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Institution/HIC
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The New City of Hamilton
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Summary
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NATURE OF THE APPEAL: The New City of Hamilton (the City) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to "all records relating to the City of Hamilton's smoking by-law as it relates to Ivor Wynne Stadium." The City initially identified a large number of potentially responsive records, and issued a fee estimate to the requester, which he paid. The City then completed a more detailed review of the identified records and provided the requester with an access decision, disclosing 62 records in whole or in part and denying access to 79 records or partial records on the basis of one or both of the following exemptions contained in the Act : Section 7 (advice and recommendations), and Section 12 (solicitor-client privilege) The requester (now the appellant) appealed the City's decision. During mediation, the City issued a revised decision to the appellant, releasing a number of additional records. Mediation was not successful in resolving all issues, and the appeal was transferred to the Adjudication Stage. I initially sent a Notice of Inquiry to the City, asking for representations on the remaining issues. The City provided representations on the issues, and also stated in its representations that: - certain records and/or portions of records would be disclosed; - certain records and/or portions of records initially identified as responsive, were now identified as not responsive to the request; - the section 7 exemption claim was withdrawn; - the City was not claiming the litigation privilege component of section 12 for any of the undisclosed records. The City also provided the appellant with copies of the records or portions of records it agreed to disclose. I then sent a revised Notice of Inquiry to the appellant, along with a copy of the City's representations. The appellant provided brief representations in response. RECORDS: There are 20 records or portions of records remaining at issue in this appeal. They consist of e-mail messages and a report. The records are numbered 2, 4, 10, 11, 12, 13, 35, 37, 40, 41, 45, 47, 48, 50, 52, 61, 63, 64, 65 and 70 (Record 45 is a duplicate of Record 37, and I will not discuss it separately in this order). In addition, the City claims that the undisclosed portions of Records 1, 38 and 46 are not responsive to the appellant's request. DISCUSSION: RESPONSIVENESS In his representation, the appellant questions whether the City can deny access to records on the basis that they are not responsive to his request. He states: Is the City able, under the Act , to withhold portions of records it considers non-responsive? I have often received records from institutions that contain information that is not in itself responsive to the request. It has always been my understanding that the Act provides a right of access to records, and allows information to be severed only if it falls under one of the exemptions. If a record contains responsive information, it is normally released in its entirety, subject to the exemptions. Therefore I question the right of [the City] to sever the contents of several records on the basis that they are non-responsive portions. These should be released in their entirety, subject to the exemptions under the Act . The appellant raises two issues. The first concerns the City's ability to withhold portions of records based on its determination that they are not responsive to the request. The appellant appears to take the position that if a record contains both responsive and non-responsive information, the City must disclose the non-responsive portions unless they qualify for exemption under the Act . It is clear from previous orders of this Office that records are often severed by an institution or an Adjudicator on the basis that certain portions do not fall within the scope of a request. Perhaps the most common example is a request for records relating to a motor vehicle accident, where certain notebook entries made by an investigating police officer are responsive, and other entries dealing with unrelated activities undertaken by that police officer on the same day are withheld on the basis that they fall outside the scope of the request. Another example might be an audit report dealing with the operation of a number of publicly funded bodies, where only one of these bodies is identified in a request. In my view, this approach to dealing with requests is both practical and supportable by the wording of the Act . Section 4 of the Act gives requesters a right of access to "a record or part of a record ", presumably for the purpose of giving institutions flexibility when making decisions regarding responsiveness. Section 17 of the Act is also relevant in this regard. It imposes obligations on both institutions and requesters to clearly identify information responsive to a request and, where unclear, to actively work together to ensure that both parties understand what information is requested and what is not. To require all portions of records, whether responsive or not, to undergo an exemption-based review in the context of responding to a particular request would, in my view, impose an unnecessary and unproductive burden on the statutory access scheme. The second issue the appellant raises is whether the information severed from Records 1, 38 and 46 is actually responsive to his request. Former Adjudicator Anita Fineberg canvassed the issue of responsiveness of records in detail in Order P-880. In applying the direction provided by the Divisional Court in Ontario (Attorney-General) v. Fineberg (1994), 19 O.R. (3rd) 197, she concluded: In my view, the need for an institution to determine which documents are relevant to a request is a fundamental first step in responding to the request. It is an integral part of any decision by a head. The request itself sets out the boundaries of relevancy and circumscribes the records which will ultimately be identified as being responsive to the request. I am of the view that,
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Legislation
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Subject Index
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Published
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Nov 14, 2001
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Type
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Order
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