Access to Information Orders
Decision Information
NATURE OF THE APPEAL: The City of Stoney Creek (the City) received a request under the MunicipalFreedom of Information and Protection of Privacy Act (the Act ) foraccess to copies of records relating to the requester. The requesterspecifically sought access to the following: 1.a letter or any communication prepared by the Mayor and distributed tocouncillors referring to the requester and the termination of her employmentand/or management change with a specified company, effective October 16, 1995; 2.a letter sent by the requester to the Mayor following the last municipalelection requesting council participation on a rotating basis on a localcommunity television channel; 3.any communication from March, 1994 to November, 1995 from the City tothe specified company or vice versa where the requester is personally referredto or generally referred to in the context of management at the televisionstudio; and 4.any communication between a producer at the specified company and theMayor and/or councillors where the requester is personally referred to orgenerally referred to in the context of management at the television studio. In its response, the City indicated that it had located one record andextended the time for issuing a decision to consult the specified company (thecompany). The City then issued a decision letter granting access to the recordand advised that the company had not located any responsive records. Withrespect to item 2 above, the City also indicated that any record personallyaddressed to the Mayor and/or councillors was not in the custody or control ofthe City. The requester appealed the denial of access. The City subsequently issued a supplementary decision in which itreconsidered its position on the custody and control of certain records. Inthis decision letter, the City stated that no other records existed in responseto the request. The City also indicated that the Mayor's records had also beensearched and no responsive records were located. During mediation, the requester asked for and received the title of theindividual contacted at the company and the date the contact was made. As aresult of the above, the only issue in this appeal is the reasonableness of thesearch conducted by the City for records responsive to the request. This office provided a Notice of Inquiry to the appellant and the City. Representations were received from both parties. DISCUSSION: REASONABLENESS OF SEARCH The appellant believes that additional records responsive to her requestexist. Specifically, she claims that a letter from her to the Mayor does exist. She points out that, at no time, has the City stated that the records requesteddo not exist. Where a requester provides sufficient details about the records which she isseeking, it is my responsibility to ensure that the City has made a reasonablesearch to identify any records which are responsive to the request. The Act does not require the City to prove with absolute certainty that the requestedrecords do not exist. However, in order to properly discharge its obligationsunder the Act , the City must provide me with sufficient evidence to showthat it has made a reasonable effort to identify and locate records responsive tothe appellant's request. With its representations, the City has provided an affidavit sworn by theActing Assistant to the Clerk (the Assistant) together with a letter from theMayor. The City has also provided a copy of its records retention by-law. Inthe affidavit, the Assistant states that in response to the request, shesearched the files in the Clerk's department and the Mayor's office and foundone record. The Assistant goes on to say that she then telephoned the appellantto clarify the request and advised her that all letters personally addressed tothe Mayor or councillors (i.e. correspondence relating to personal matters) arenot in the custody and control of the City. At this time, the Assistantinformed the appellant that additional time would be required in order tocontact the company and seek its assistance with the search. The Assistantstates that she sent a letter to the company by facsimile requesting assistancewith the search and received a verbal response within a week. The companyconfirmed that it had no records responsive to the request. The Assistantstates that in response to mediation efforts of the Commissioner's office, asearch was also conducted of the records sent to the Mayor at her home addressand no responsive records were found. The letter from the Mayor confirms that a search was conducted of allrecords sent to her home address in relation to her position as Mayor and norecords responsive to the request were found. I have carefully reviewed the representations of the parties together withthe affidavit provided by the City. I am satisfied that the City has taken allreasonable steps in the circumstances of this appeal to identify and locate therequested records. ORDER: I dismiss this appeal. Original signed by: Mumtaz Jiwan, Inquiry Officer November 25, 1996
Decision Content
ORDER M-863
Appeal M_9600270
City of Stoney Creek
NATURE OF THE APPEAL:
The City of Stoney Creek (the City) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for access to copies of records relating to the requester. The requester specifically sought access to the following:
1. a letter or any communication prepared by the Mayor and distributed to councillors referring to the requester and the termination of her employment and/or management change with a specified company, effective October 16, 1995;
2. a letter sent by the requester to the Mayor following the last municipal election requesting council participation on a rotating basis on a local community television channel;
3. any communication from March, 1994 to November, 1995 from the City to the specified company or vice versa where the requester is personally referred to or generally referred to in the context of management at the television studio; and
4. any communication between a producer at the specified company and the Mayor and/or councillors where the requester is personally referred to or generally referred to in the context of management at the television studio.
In its response, the City indicated that it had located one record and extended the time for issuing a decision to consult the specified company (the company). The City then issued a decision letter granting access to the record and advised that the company had not located any responsive records. With respect to item 2 above, the City also indicated that any record personally addressed to the Mayor and/or councillors was not in the custody or control of the City. The requester appealed the denial of access.
The City subsequently issued a supplementary decision in which it reconsidered its position on the custody and control of certain records. In this decision letter, the City stated that no other records existed in response to the request. The City also indicated that the Mayor’s records had also been searched and no responsive records were located.
During mediation, the requester asked for and received the title of the individual contacted at the company and the date the contact was made. As a result of the above, the only issue in this appeal is the reasonableness of the search conducted by the City for records responsive to the request.
This office provided a Notice of Inquiry to the appellant and the City. Representations were received from both parties.
DISCUSSION:
REASONABLENESS OF SEARCH
The appellant believes that additional records responsive to her request exist. Specifically, she claims that a letter from her to the Mayor does exist. She points out that, at no time, has the City stated that the records requested do not exist.
Where a requester provides sufficient details about the records which she is seeking, 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 the requested records do not exist. However, 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 records responsive to the appellant’s request.
With its representations, the City has provided an affidavit sworn by the Acting Assistant to the Clerk (the Assistant) together with a letter from the Mayor. The City has also provided a copy of its records retention by-law. In the affidavit, the Assistant states that in response to the request, she searched the files in the Clerk’s department and the Mayor’s office and found one record. The Assistant goes on to say that she then telephoned the appellant to clarify the request and advised her that all letters personally addressed to the Mayor or councillors (i.e. correspondence relating to personal matters) are not in the custody and control of the City. At this time, the Assistant informed the appellant that additional time would be required in order to contact the company and seek its assistance with the search. The Assistant states that she sent a letter to the company by facsimile requesting assistance with the search and received a verbal response within a week. The company confirmed that it had no records responsive to the request. The Assistant states that in response to mediation efforts of the Commissioner’s office, a search was also conducted of the records sent to the Mayor at her home address and no responsive records were found.
The letter from the Mayor confirms that a search was conducted of all records sent to her home address in relation to her position as Mayor and no records responsive to the request were found.
I have carefully reviewed the representations of the parties together with the affidavit provided by the City. I am satisfied that the City has taken all reasonable steps in the circumstances of this appeal to identify and locate the requested records.
ORDER:
I dismiss this appeal.
Original signed by: November 25, 1996
Mumtaz Jiwan
Inquiry Officer