Access to Information Orders
Decision Information
NATURE OF THE APPEAL: The appellant made a request to the Ministry of Public Safety and Security (the Ministry) under the Freedom of Information and Protection of Privacy Act (the Act ). The request was for the following information from the Centre of Forensic Sciences (CFS): All of the instructor overheads used in the last two years in the Breath Alcohol Training Course conducted by staff at the Ministry's Centre of Forensic Sciences. These overheads would deal with, but not limited to such topics as the theory, use, operation, protocols, and associated scientific and legal aspects of the Intoxilyzer 5000C, Breathalyzer Models 900 and 900A and the Alcotest 7410 GLC/PA3. A copy of a list of all previous and current qualified Breath Alcohol Training Course instructors, Breath Alcohol Training Course directors, seconded police Breath Alcohol testing Co-ordinators, and breath alcohol testing equipment maintenance/repair technical people. An electronic copy of the computerized database referred to as the "alcohol database" at the Centre of Forensic Sciences which has been assembled by [a named individual] and colleagues, the contents of which resides in [the named individual's] office, and which provides references to scientific, technical, and legal articles, the respective names(s) of the author(s) of each article, and the respective abstract of each article. The Ministry identified one responsive record for each part of the appellant's request. The Ministry provided access to the responsive portions of Record 2, and denied access to Records 1 and 3. The Ministry relied on the section 22(a) (published information) for a portion of Record 3, and the following exemptions for Record 1 and the remaining portions of Record 3: sections 14(1)(c) and (l) - law enforcement section 17(1) - third party information sections 18(1)(a) and (c) - economic interest of Ministry The Ministry identified section 18(1)(b) as an additional exemption for the portions of Record 3 not covered by the section 22(a) exemption claim. During mediation, the appellant took the position that additional records responsive to part 2 of the request should exist, so the reasonableness of the Ministry's search for part 2 records was added as an issue in this appeal. Mediation was not successful, so the file was transferred to the adjudication stage of the appeal process. I sent a Notice of Inquiry to the Ministry and two companies whose interest could be affected by disclosure of Record 1 (the affected parties). Only the Ministry responded with representations. In its representations, the Ministry withdrew the section 18(1)(c) exemption claim. I then sent the Notice to the appellant, along with the non-confidential portions of the Ministry's representations. The appellant submitted representations. RECORDS: There are two records at issue in this appeal: Record 1 - Breath Alcohol Training Program Overheads This record is comprised of materials from three courses, and consists of charts, diagrams, graphs and other information relating to the operation of Breathalyzer and Intoxilyzer equipment. Record 3 - The "Alcohol Database" This record consists of one CD-ROM containing the published and unpublished portions of the CFS alcohol database. DISCUSSION: ADEQUACY OF SEARCH The only record identified by the Ministry as responsive to part 2 of the request is a 1-page list of toxicologists and police coordinators participating in training programs. In its original decision letter to the appellant, the Ministry explains: … [P]lease be advised that a complete listing of the requested information is not available from CFS. However, the current Breathalyzer/Intoxilyzer Training Schedule (April 2002-March 2003) contains the names of DGS toxicologists scheduled as training leads and the names of individuals scheduled as CFS police coordinators. A copy of the responsive parts of this record is attached. The appellant takes the position that there should be more responsive records. Where a requester claims that additional records exist beyond those identified by the institution, the issue to be decided is whether the institution has conducted a reasonable search for records as required by section 17 [Orders P-85, P-221, PO-1954-I]. The Act does not require the institution to prove with absolute certainty that further records do not exist. However, the institution must provide sufficient evidence to show that it has made a reasonable effort to identify and locate responsive records [P-624]. The Ministry explains that each province has an appointed Breath Alcohol Testing Program Director, who is responsible for all program records. Ontario's Program Director is an employee of the CFS, and this individual submitted an affidavit as part of the Ministry's representations. In explaining why no additional records exist, the Program Director states: … No list of "all previous and current qualified Breath Alcohol Training Course instructors, Breath Alcohol Training Course Directors, seconded Breath Alcohol Test Co-ordinators, and breath alcohol testing equipment maintenance/repair technical staff" has ever been compiled or maintained by [the CFS] as there has never been a legal requirement or managerial reason to do so. Individuals are assigned as lead instructors (otherwise known as the Course Directors) with the responsibility for the supervision of courses by the Breath Alcohol Testing Programme Director. This is done on an annual basis and the information is distributed to the staff for action as required over the respective year. This list is strictly a temporary record for the given year as there is no need to track this information once the course has been completed. The lead instructor has the responsibility for ensuring that the classes within the course are taught by individual instructors. No record of this assignation is compiled because again there is no legal or managerial requirement to do so. All scientific staff of the Toxicology Section for [the CFS] are qualified to instruct on the course once they have completed the respective course on which they will be instructing. Two Ontario Provincial Police officers are seconded to [the CFS] to act as Breath Alcohol Test Co-ordinators. This secondment is for a period of two years but may be extended as required. No list of these officers' names has been or is currently maintained as there has never been a compelling reason to do so. No list of breath alcohol testing equipment maintenance/repair technical staff has been or is currently maintained as there has never been a compelling reason to do so. No searches for the requested lists were conducted as this organization does not maintain lists of this nature. The appellant appears to accept that no lists exist, but maintains that other records could be used to create "lists" that are responsive to part 2 of the request. He identifies travel expense accounts of Testing Co-ordinators and court attendance schedules for toxicologists as two examples of the types of records that, in his view, would contain responsive information. In my view, the Ministry has provided a reasonable explanation for why additional recor
Decision Content
NATURE OF THE APPEAL:
The appellant made a request to the Ministry of Public Safety and Security (the Ministry) under the Freedom of Information and Protection of Privacy Act (the Act). The request was for the following information from the Centre of Forensic Sciences (CFS):
1. All of the instructor overheads used in the last two years in the Breath Alcohol Training Course conducted by staff at the Ministry’s Centre of Forensic Sciences. These overheads would deal with, but not limited to such topics as the theory, use, operation, protocols, and associated scientific and legal aspects of the Intoxilyzer 5000C, Breathalyzer Models 900 and 900A and the Alcotest 7410 GLC/PA3.
2. A copy of a list of all previous and current qualified Breath Alcohol Training Course instructors, Breath Alcohol Training Course directors, seconded police Breath Alcohol testing Co-ordinators, and breath alcohol testing equipment maintenance/repair technical people.
3. An electronic copy of the computerized database referred to as the “alcohol database” at the Centre of Forensic Sciences which has been assembled by [a named individual] and colleagues, the contents of which resides in [the named individual’s] office, and which provides references to scientific, technical, and legal articles, the respective names(s) of the author(s) of each article, and the respective abstract of each article.
The Ministry identified one responsive record for each part of the appellant’s request.
The Ministry provided access to the responsive portions of Record 2, and denied access to Records 1 and 3. The Ministry relied on the section 22(a) (published information) for a portion of Record 3, and the following exemptions for Record 1 and the remaining portions of Record 3: