Access to Information Orders
Decision Information
NATURE OF THE APPEAL: The City of Ottawa (the City) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for records in the Building Services files containing information relating to a named subdivision in the City, that had not previously been produced in response to earlier requests made by the requester under the Act. The requester clarified that she was not interested in building permit information. In response, the City issued a decision stating that no other records exist. The requester, now the appellant, appealed this decision. The appellant believes that records responsive to her request, beyond those which she has already received plus building permit information, should exist. She stated that there were many letters of complaint from homeowners in the subdivision in the City's files, but no indication of management response to these letters, such as internal correspondence, trend analyses, and management reporting. She had received a document labelled "Appendix 1" in an earlier request, and expected to receive it in this request as well. She also believed that there should have been documentation relating to a "special investigation" which she indicates was conducted by a City building inspector at three specific addresses in the subdivision in March 2002. She noted that an email relating to the subdivision, received by one of her neighbours from a City employee, had not been produced in response to her requests. I provided the appellant and the City with a Notice of Inquiry informing them that an oral inquiry would be held to determine whether the City had conducted a reasonable search for records responsive to the request. Prior to the inquiry, during mediation, the appellant agreed that as "Appendix 1" had been received by her in an earlier request, it would not have been responsive to this request. She also removed the issue of the email from the appeal. The City provided the mediator with affidavits signed by the Access and Privacy Analyst, the Director of the Building Services Branch, the Manager, Property Standards Division of the Building Services Branch and the Manager, Building Inspections of the Building Services Branch. These affidavits outlined the involvement of each employee in the search for records responsive to this request and were shared with the appellant. The appellant sent the mediator and the City a response to the affidavits, challenging a statement in two affidavits that no investigation was undertaken in March 2003 of the three specific addresses. She provided three "Order to Comply" forms for these addresses on which she stated the inspector based his inspection. She also noted that she accompanied him on these inspections. The inquiry was conducted via teleconference. The appellant was present, as were the legal representative for the City, the Director of the Building Services Branch, the Manager, Property Standards Division of the Building Services Branch and the Manager, Building Inspections of the Building Services Branch, the Access and Privacy Analyst and the Municipal Freedom of Information Co-ordinator of the City. Both the appellant and the City provided oral representations. DISCUSSION: Introduction Where a requester provides sufficient details about the records that he or she 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 all responsive records. The Act does not require the institution to prove with absolute certainty that records do not exist; however, in order to properly discharge its statutory obligations, the institution must provide me with sufficient evidence to show that it has made a reasonable effort to identify and locate responsive records. Although an appellant will rarely be in a position to indicate precisely which records have not been identified in an institution's response to a request, the appellant must, nevertheless, provide a reasonable basis for concluding that such records may in fact exist. In her submissions, the appellant raised three points. Her first point was that a City inspector did inspect the homes at three specific addresses in March 2002 and she referred to the three Orders to Comply, which formed the basis of this investigation. She notes that she had accompanied him. She understood that this inspection was not part of the City's normal process, and believed that the City would use this to determine if any trends or systemic issues could be identified. Because of the unprecedented nature of this investigation, and the serious nature of the deficiencies, the appellant believes that a report would have been produced. Her second point was that there should have been a response on the part of City management to the numerous inspection reports by their inspectors and to the reports provided to the City by different homeowners. She noted that she would have expected to see a trend analysis or some kind of global management response to the problems in this subdivision. Her third point was that although she narrowed the scope of her request through discussions with the City, she found no records from a named General Manager, and noted that he had not provided an affidavit for the inquiry. She believes that there should be records created by him that would be responsive to her request. The City responded to the appellant's points. The Director of the Building Services Branch explained that the mandate of the Branch is to enforce the Building Code Act and other building-related statutes and bylaws. She agreed that special attention was given to the three specific addresses in this subdivision, that there was an inspection of these houses, and that this inspection was not part of their normal process. However, she pointed out that their documentation is restricted to what flows from their mandate, such as inspection reports, orders to comply, stop work orders, and orders to uncover. The Director stated that she spoke to the inspector (who has since retired) who conducted the inspection of these three houses, and he confirmed to her that all his findings were summarized in orders to comply. Any action taken by the builder would subsequently be documented in inspection reports that are maintained in the building permit files, which the appellant had excluded from her request. The Director clarified that because of the volume of records created for two of the addresses, all records for these two addresses were kept in two binders, which were provided to the appellant. For the third property, everything was provided to the appellant except for records that might be located in the building permit files. In terms of the appellant's second point, the Director explained that their mandate is to enforce the Building Code Act and specific records must be prepared to discharge their duties and document inspections. She outlined the kinds of records the Branch maintains: building permit applications; plans and records submitted by an applicant; notions and approvals of the plans; the building permit; inspection reports to document inspections undertaken at certain stages of construction; orders to comply, stop work orders, orders to uncover, and orders to remedy an unsafe building, and she stated that the Branch produces no other kind of record. Generally, interact
Decision Content
NATURE OF THE APPEAL:
The City of Ottawa (the City) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for records in the Building Services files containing information relating to a named subdivision in the City, that had not previously been produced in response to earlier requests made by the requester under the Act. The requester clarified that she was not interested in building permit information. In response, the City issued a decision stating that no other records exist.
The requester, now the appellant, appealed this decision. The appellant believes that records responsive to her request, beyond those which she has already received plus building permit information, should exist. She stated that there were many letters of complaint from homeowners in the subdivision in the City’s files, but no indication of management response to these letters, such as internal correspondence, trend analyses, and management reporting. She had received a document labelled “Appendix 1” in an earlier request, and expected to receive it in this request as well. She also believed that there should have been documentation relating to a “special investigation” which she indicates was conducted by a City building inspector at three specific addresses in the subdivision in March 2002. She noted that an email relating to the subdivision, received by one of her neighbours from a City employee, had not been produced in response to her requests.
I provided the appellant and the City with a Notice of Inquiry informing them that an oral inquiry would be held to determine whether the City had conducted a reasonable search for records responsive to the request.
Prior to the inquiry, during mediation, the appellant agreed that as “Appendix 1” had been received by her in an earlier request, it would not have been responsive to this request. She also removed the issue of the email from the appeal.
The City provided the mediator with affidavits signed by the Access and Privacy Analyst, the Director of the Building Services Branch, the Manager, Property Standards Division of the Building Services Branch and the Manager, Building Inspections of the Building Services Branch. These affidavits outlined the involvement of each employee in the search for records responsive to this request and were shared with the appellant.
The appellant sent the mediator and the City a response to the affidavits, challenging a statement in two affidavits that no investigation was undertaken in March 2003 of the three specific addresses. She provided three “Order to Comply” forms for these addresses on which she stated the inspector based his inspection. She also noted that she accompanied him on these inspections.
The inquiry was conducted via teleconference. The appellant was present, as were the legal representative for the City, the Director of the Building Services Branch, the Manager, Property Standards Division of the Building Services Branch and the Manager, Building Inspections of the Building Services Branch, the Access and Privacy Analyst and the Municipal Freedom of Information Co-ordinator of the City. Both the appellant and the City provided oral representations.
DISCUSSION:
Introduction
Where a requester provides sufficient details about the records that he or she 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 all responsive records. The Act does not require the institution to prove with absolute certainty that records do not exist; however, in order to properly discharge its statutory obligations, the institution must provide me with sufficient evidence to show that it has made a reasonable effort to identify and locate responsive records.
Although an appellant will rarely be in a position to indicate precisely which records have not been identified in an institution’s response to a request, the appellant must, nevertheless, provide a reasonable basis for concluding that such records may in fact exist.
In her submissions, the appellant raised three points.
Her first point was that a City inspector did inspect the homes at three specific addresses in March 2002 and she referred to the three Orders to Comply, which formed the basis of this investigation. She notes that she had accompanied him. She understood that this inspection was not part of the City’s normal process, and believed that the City would use this to determine if any trends or systemic issues could be identified. Because of the unprecedented nature of this investigation, and the serious nature of the deficiencies, the appellant believes that a report would have been produced.
Her second point was that there should have been a response on the part of City management to the numerous inspection reports by their inspectors and to the reports provided to the City by different homeowners. She noted that she would have expected to see a trend analysis or some kind of global management response to the problems in this subdivision.
Her third point was that although she narrowed the scope of her request through discussions with the City, she found no records from a named General Manager, and noted that he had not provided an affidavit for the inquiry. She believes that there should be records created by him that would be responsive to her request.