Access to Information Orders
Decision Information
NATURE OF THE APPEAL: On January 2, 2003, the Ministry of Health and Long-Term Care (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) as follows: I believe meetings are held roughly every six months of representatives from provincial/territorial ministries of health to discuss issues pertaining to out-of-province and out-of-country health services. I do not know if these meetings bear an official name or committee title. It is my understanding that at one or more of these meetings (held sometime prior to mid-September 2002), the issue of gene testing for retinoblastoma was discussed. I believe that some of the Ontario representatives were from the Provider Services Branch, Ministry of Health and Long Term Care. I request access to the following documents having connection to the meeting, or meetings, at which gene testing for retinoblastoma was discussed: Meeting(s) agenda List of all participants and attendees at the meeting(s) All records connected to the discussion of gene testing for retinoblastoma, whether the records were made before, during, or after the meeting(s), such as: written presentations by the MOHLTC or others: notes of any oral presentations; computer presentations (e.g. PowerPoint); notes to file made by the representatives/participants be they electronic notes or comments taken on laptop or regular computers during the meetings or thereafter, or handwritten; e-mails and other correspondence; handouts, overhead acetates, slides, or recordings; preparatory or draft-only documents; briefing notes (please sever privileged information, if any); and legal opinions (please sever privileged information, if any). I believe, but am not certain, that responsive records will be found at the Provider Services Branch, MOHLTC, in Kingston. I am interested in relevant records from January 1, 2001, to the present. This is continuing request for access, in the event that retinoblastoma gene testing is discussed at subsequent meetings. On January 20, 2003, the Ministry issued a decision advising that the record requested does not exist. In its decision letter, the Ministry also provided the following information: The search was conducted in the Provider Services Branch of the Health Services Division. [A named individual], Director of Provider Services Branch, indicates that a complete and thorough search of Provider Services Branch has been conducted and that no responsive records were found. For your information, minutes and agenda for five meetings of Provincial and Territorial Medical Directors (between March of 2001 and September of 2002) were located but the subject matter of your request was not on the agenda or discussed at any of these meetings. On January 24, 2003, the requester's representative (now the appellant) appealed the Ministry's decision to this office. In appeals such as this one, involving the denial of access on the basis that no responsive records exist, the sole issue to be decided is whether the institution has conducted a reasonable search for responsive records, as required by section 24 of the Act . This office provided the appellant and the Ministry with a Notice of Inquiry informing them that a mediator was assigned to the file and if the appeal was not resolved by mediation, an oral inquiry would be held to determine whether the Ministry has conducted a reasonable search for records responsive to the request. The Notice of Inquiry also contained information provided by the appellant to this office to substantiate his belief that records should exist. To substantiate his belief that records should exist, the appellant provided this office with a letter dated September 24, 2002 from [a named physician] from Nova Scotia. The appellant highlighted the fact that this letter specifically makes reference to "a meeting of the Medical Directors across Canada which was held in Kingston, and the issue of retinoblastoma was discussed". The appellant also referred to portions of the letter which states "We were advised by the Medical Director from Ontario that inquiries should be directed to the Molecular Lab at the Sick Kids in Toronto" and that "The Province of Nova Scotia has a reciprocal arrangement with the Province of Ontario and will pick up all laboratory costs under the reciprocal arrangement…" In the appellant's view, the statements in this letter support his view that the Ministry should have records responsive to his client's request. The appellant also advised this office that he spoke to the Medical Director of the Department of Health for the Province of Newfoundland and Labrador, who confirmed that he was at a meeting in September 2002 where the topic of retinoblastoma was discussed. As the matter did not resolve during the mediation stage of this appeal, an oral inquiry was held at this office. The appellant attended with an assistant and provided oral representations. Present on behalf of the Ministry were the following individuals, who also provided oral representations: the Freedom of Information (FOI) Team Lead, an FOI Program Adviser, and Counsel from the Legal Services Branch. An individual from the Provider Services Branch (Administrative Services Co-ordinator) also provided oral representations via teleconference. DISCUSSION: REASONABLENESS OF SEARCH As set out above, in appeals involving a denial of access on the basis that no records or no additional responsive records exist, the sole issue to be decided is whether the institution has conducted a reasonable search for responsive records, as required by section 24 of the Act . If I am satisfied that the search carried out was reasonable in the circumstances, the decision of the Ministry will be upheld. If I am not satisfied, further searches may be ordered. Where a requester provides sufficient detail about the records he is seeking and the institution indicates that records do not exist, it is my responsibility to ensure that the institution has made a reasonable search to identify any records that are responsive to the request. The Act does not require the institution 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 institution must provide me with sufficient evidence to show that it has made a reasonable effort to identify and locate records responsive to the request. A reasonable search is one in which an experienced employee expends a reasonable effort to locate records that are reasonably related to the request. THE REPRESENTATIONS At the start of the inquiry, I was advised that the Ministry had located four pages of responsive records as a result of a second search that was conducted during the mediation stage of this appeal. These documents include an agenda and two pages from the minutes of the Inter-Provincial Medical Directors Meeting of September 19-20, 2002. The appellant confirmed that he received the Ministry's revised decision of April 17, 2003 granting full access to these four pages. The appellant provided me w
Decision Content
NATURE OF THE APPEAL:
On January 2, 2003, the Ministry of Health and Long-Term Care (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act) as follows:
I believe meetings are held roughly every six months of representatives from provincial/territorial ministries of health to discuss issues pertaining to out-of-province and out-of-country health services. I do not know if these meetings bear an official name or committee title.
It is my understanding that at one or more of these meetings (held sometime prior to mid-September 2002), the issue of gene testing for retinoblastoma was discussed. I believe that some of the Ontario representatives were from the Provider Services Branch, Ministry of Health and Long Term Care.
I request access to the following documents having connection to the meeting, or meetings, at which gene testing for retinoblastoma was discussed:
1. Meeting(s) agenda
2. List of all participants and attendees at the meeting(s)
3. All records connected to the discussion of gene testing for retinoblastoma, whether the records were made before, during, or after the meeting(s), such as:
• written presentations by the MOHLTC or others:
• notes of any oral presentations;
• computer presentations (e.g. PowerPoint);
• notes to file made by the representatives/participants be they electronic notes or comments taken on laptop or regular computers during the meetings or thereafter, or handwritten;
• e-mails and other correspondence;
• handouts, overhead acetates, slides, or recordings;
• preparatory or draft-only documents;
• briefing notes (please sever privileged information, if any); and
• legal opinions (please sever privileged information, if any).
I believe, but am not certain, that responsive records will be found at the Provider Services Branch, MOHLTC, in Kingston. I am interested in relevant records from January 1, 2001, to the present.
This is continuing request for access, in the event that retinoblastoma gene testing is discussed at subsequent meetings.
On January 20, 2003, the Ministry issued a decision advising that the record requested does not exist. In its decision letter, the Ministry also provided the following information:
The search was conducted in the Provider Services Branch of the Health Services Division. [A named individual], Director of Provider Services Branch, indicates that a complete and thorough search of Provider Services Branch has been conducted and that no responsive records were found.
For your information, minutes and agenda for five meetings of Provincial and Territorial Medical Directors (between March of 2001 and September of 2002) were located but the subject matter of your request was not on the agenda or discussed at any of these meetings.
On January 24, 2003, the requester’s representative (now the appellant) appealed the Ministry’s decision to this office.
In appeals such as this one, involving the denial of access on the basis that no responsive records exist, the sole issue to be decided is whether the institution has conducted a reasonable search for responsive records, as required by section 24 of the Act.
This office provided the appellant and the Ministry with a Notice of Inquiry informing them that a mediator was assigned to the file and if the appeal was not resolved by mediation, an oral inquiry would be held to determine whether the Ministry has conducted a reasonable search for records responsive to the request. The Notice of Inquiry also contained information provided by the appellant to this office to substantiate his belief that records should exist.
To substantiate his belief that records should exist, the appellant provided this office with a letter dated September 24, 2002 from [a named physician] from Nova Scotia. The appellant highlighted the fact that this letter specifically makes reference to “a meeting of the Medical Directors across Canada which was held in Kingston, and the issue of retinoblastoma was discussed”. The appellant also referred to portions of the letter which states “We were advised by the Medical Director from Ontario that inquiries should be directed to the Molecular Lab at the Sick Kids in Toronto” and that “The Province of Nova Scotia has a reciprocal arrangement with the Province of Ontario and will pick up all laboratory costs under the reciprocal arrangement…” In the appellant’s view, the statements in this letter support his view that the Ministry should have records responsive to his client’s request. The appellant also advised this office that he spoke to the Medical Director of the Department of Health for the Province of Newfoundland and Labrador, who confirmed that he was at a meeting in September 2002 where the topic of retinoblastoma was discussed.
As the matter did not resolve during the mediation stage of this appeal, an oral inquiry was held at this office. The appellant attended with an assistant and provided oral representations. Present on behalf of the Ministry were the following individuals, who also provided oral representations: the Freedom of Information (FOI) Team Lead, an FOI Program Adviser, and Counsel from the Legal Services Branch. An individual from the Provider Services Branch (Administrative Services Co-ordinator) also provided oral representations via teleconference.
DISCUSSION:
REASONABLENESS OF SEARCH
As set out above, in appeals involving a denial of access on the basis that no records or no additional responsive records exist, the sole issue to be decided is whether the institution has conducted a reasonable search for responsive records, as required by section 24 of the Act. If I am satisfied that the search carried out was reasonable in the circumstances, the decision of the Ministry will be upheld. If I am not satisfied, further searches may be ordered.
Where a requester provides sufficient detail about the records he is seeking and the institution indicates that records do not exist, it is my responsibility to ensure that the institution has made a reasonable search to identify any records that are responsive to the request. The Act does not require the institution 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 institution must provide me with sufficient evidence to show that it has made a reasonable effort to identify and locate records responsive to the request.