Access to Information Orders

Decision Information

PO-2243

Collection Access to Information Orders
Date 2004-02-20
File Numbers PA-030106-4
Adjudicators Robert Binstock
Type Order
Subjects Head's Decision - Deemed Refusal
Applicable Legislation FIPPA; FIPPA - 29(4)
Summary:

NATURE OF THE APPEAL: This is a deemed refusal appeal under the Freedom of Information and Protection of Privacy Act (the Act ) with regard to a request made to the Ministry of the Environment (the Ministry). Section 26 of the Act requires the Ministry to issue a decision within 30 days of receipt of a request. If a decision is not issued within that time period, the Ministry is in a "deemed refusal" situation pursuant to subsection 29(4) of the Act . That provision states: A head who fails to give the notice required under section 26 or subsection 28(7) concerning a record shall be deemed to have given notice of refusal to give access to the record on the last day of the period during which notice should have been given. The appeal before me has a long and complex history involving three previous appeal files. It is therefore necessary for me to provide a more detailed account of the history of this matter than would otherwise be included. On January 23, 2003, the Ministry received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for the following information: I am requesting all reports, briefing notes, memos, e-mail correspondence, plans, documents, specifications, policy statements, faxes, meeting notes, and other such information produced within the ministry or received by the ministry from any other source specifically involving the Bruce Nuclear Power Development (Tiverton, ON) associated with the following: Environmental Non-Compliance Report details (Dec 30 1999 to Dec 30 2002) Certificate of Approval exceedences or Amendments (Dec 30 1999 to Dec 30 2002) Events reports, spills, or discharges to the environment (Dec 30 1999 to Dec 30 2002) Acute lethality / toxicity violations (Dec 30 1999 to Dec 30 2002) By "Bruce Nuclear Power Development" I mean to include all corporations, government bodies, etc. that have operations on the site including: Ontario Power Generation Bruce Power Hydro One AECL any others that apply Further I am requesting all reports, briefing notes, memos, e-mail correspondence, plans, documents, specifications, policy statements, faxes, meeting notes, and other such information produced within the ministry or received by the ministry from any other source pertaining to mortality or adverse effects of discharges from any entity at the BNPD to the Environment affecting waterfowl and aquatic life within the timeframe of Dec 30 1999 to Dec 30 2002. I am also requesting all reports, briefing notes, memos, e-mail correspondence, plans, documents, specifications, policy statements, faxes, meeting notes, and other such information produced within the ministry or received by the ministry from any other source pertaining to the following: hydrazine morpholine ammonia chromium cesium-137 carbon-14 within the timeframe of Dec 30 1999 to Dec 30 2002. Further I am requesting all reports, briefing notes, memos, e-mail correspondence, plans, documents, specifications, policy statements, faxes, meeting notes, and other such information produced within the ministry or received by the ministry from any other source pertaining to water quality or aquatic life including all trout species in regards to Stream "C" within the timeframe of Dec 30 1999 to Dec 30 2002. On February 28, 2003, the Ministry responded to the requester by issuing an interim decision. In its decision the Ministry indicated that although no final decision had been made regarding access, as the records had not yet been reviewed, section 17(1)(a) and (c) and 21(1)(f) of the Act will likely apply. A preliminary search for records was conducted and the following was located: Owen Sound District office had approximately 4000 pages; Environmental Assessment and Approvals Branch had approximately 9100 pages; Environmental Monitoring and Reporting Branch had 9 pages; Environmental SWAT Team, Spills Action Centre had no records. The decision also included the following fee estimate: Search time approx. 35.5 hours @ $30.00 per hour - $1065.00 Photocopying approx 13,009 pages @.20 cents per page - $2,620.00 Retrieval of Inactive Records (Environmental Assessment and Approvals Branch) - $60.00 Photocopying Retrieved Records (above) - TBD Preparation time 30 hours @ $30.00/hr - $900.00 Maps (over 1'1" x 17") 34 @ $10.00 each - $340.00 Delivery - $10.00 Total - $4,995.00 Deposit Required (50%) - $2,497.50 In order to continue processing the request the Ministry asked the requester to provide a deposit of 50% of the fee. The Ministry indicated that once the deposit was received, the time for issuing a decision would be extended for an additional 60 days due to the extremely large volume of materials to be reviewed and prepared for disclosure. The requester (now the appellant) appealed the decision indicating that she felt the fee should be waived pursuant to section 57(4) of the Act and file PA-030106-1 was opened. This appeal was later closed since the appellant had not made a fee waiver request directly to the Ministry. On May 19, 2003, the Ministry responded to the appellant's request that the fee be waived. The Ministry decided to reduce the fee estimate by 50% to a total of $2,497.50. A second option was also provided whereby the Ministry would allow the appellant to only view the records for a cost of $2,375.00. The decision indicated that due to the volume of records to be searched for, narrowing the request would assist to further reduce the fees. The Ministry indicated that once the deposit was received, the time for issuing a decision would be extended for an additional 60 days. On May 26, 2003, the Ministry's decision to partially waive the fee estimate was appealed and file PA-030106-2 was opened. The sole issue in that appeal was the appellant's position that the entire fee should be waived. The Ministry wrote to the appellant on June 9, 2003, indicating that it would re-evaluate its decision on the fee waiver if she were to provide further details to support her request and, once again, indicated that by narrowing her request she could reduce the fee. The appellant wrote to the Ministry on July 8, 2003, with additional details in support of her fee waiver request. In another letter dated July 11, 2003 the appellant indicated that she would be willing to narrow her request in the following ways: exclude the subject of morpholine from the list of chemicals requested; exclude draft versions of final documents; exclude Certificates of Approval which have not been exceeded or amended; receive records on CD-ROM as opposed to hard copy; remove duplicate copies; and further reduce the scope of her request if she was provided with a directory of files including abstracts. On July 29, 2003, the Ministry provided the appellant with a revised interim decision that included a total fee estimate that had been further reduced to $290.60 (25% of the actual cost), an indication of the exemptions that may apply, and an indication that

Decision Content

ORDER PO-2243

 

Appeal PA-030106-4

 

Ministry of the Environment

NATURE OF THE APPEAL:

 

This is a deemed refusal appeal under the Freedom of Information and Protection of Privacy Act (the Act) with regard to a request made to the Ministry of the Environment (the Ministry).

 

A head who fails to give the notice required under section 26 or subsection 28(7) concerning a record shall be deemed to have given notice of refusal to give access to the record on the last day of the period during which notice should have been given.

The appeal before me has a long and complex history involving three previous appeal files.  It is therefore necessary for me to provide a more detailed account of the history of this matter than would otherwise be included.

 

On January 23, 2003, the Ministry received a request under the Freedom of Information and Protection of Privacy Act (the Act) for the following information:

 

I am requesting all reports, briefing notes, memos, e-mail correspondence, plans, documents, specifications, policy statements, faxes, meeting notes, and other such information produced within the ministry or received by the ministry from any other source specifically involving the Bruce Nuclear Power Development (Tiverton, ON) associated with the following:   1. Environmental Non-Compliance Report details (Dec 30 1999 to Dec 30 2002) 2. Certificate of Approval exceedences or Amendments (Dec 30 1999 to Dec 30 2002) 3. Events reports, spills, or discharges to the environment (Dec 30 1999 to Dec 30 2002) 4. Acute lethality / toxicity violations (Dec 30 1999 to Dec 30 2002)   By "Bruce Nuclear Power Development" I mean to include all corporations, government bodies, etc. that have operations on the site including:   •     Ontario Power Generation •     Bruce Power •     Hydro One •     AECL •     any others that apply   Further I am requesting all reports, briefing notes, memos, e-mail correspondence, plans, documents, specifications, policy statements, faxes, meeting notes, and other such information produced within the ministry or received by the ministry from any other source pertaining to mortality or adverse effects of discharges from any entity at the BNPD to the Environment affecting waterfowl and aquatic life within the timeframe of Dec 30 1999 to Dec 30 2002.   I am also requesting all reports, briefing notes, memos, e-mail correspondence, plans, documents, specifications, policy statements, faxes, meeting notes, and other such information produced within the ministry or received by the ministry from any other source pertaining to the following:   • hydrazine • morpholine • ammonia • chromium • cesium-137 • carbon-14   within the timeframe of Dec 30 1999 to Dec 30 2002.   Further I am requesting all reports, briefing notes, memos, e-mail correspondence, plans, documents, specifications, policy statements, faxes, meeting notes, and other such information produced within the ministry or received by the ministry from any other source pertaining to water quality or aquatic life including all trout species in regards to Stream "C" within the timeframe of Dec 30 1999 to Dec 30 2002.

 

On February 28, 2003, the Ministry responded to the requester by issuing an interim decision.  In its decision the Ministry indicated that although no final decision had been made regarding access, as the records had not yet been reviewed, section 17(1)(a) and (c) and 21(1)(f) of the Act will likely apply.  A preliminary search for records was conducted and the following was located:

 

  • Owen Sound District office had approximately 4000 pages;
  • Environmental Assessment and Approvals Branch had approximately 9100 pages;
  • Environmental Monitoring and Reporting Branch had 9 pages;
  • Environmental SWAT Team, Spills Action Centre had no records.

 

The decision also included the following fee estimate:

 

•         Search time approx. 35.5 hours @ $30.00 per hour                            $1065.00 •         Photocopying approx 13,009 pages @.20 cents per page                  $2,620.00          •         Retrieval of Inactive Records (Environmental Assessment               $60.00 and Approvals Branch) •         Photocopying Retrieved Records (above)                                          TBD •         Preparation time 30 hours @ $30.00/hr                                              $900.00 •         Maps (over 1'1" x 17") 34 @ $10.00 each                                          $340.00 •         Delivery                                                                                              $10.00 •         Total                                                                                                    $4,995.00 •         Deposit Required (50%)                                                                    $2,497.50

 

  • Owen Sound District office had approximately 4000 pages;
  • Environmental Assessment and Approvals Branch had approximately 130 pages;
  • Environmental Monitoring and Reporting Branch had 9 pages;

DISCUSSION:

 

The matter before me is to determine whether the issuance of the Ministry’s interim decision dated February 11, 2004, removes it from being in a deemed refusal situation in relation to its interim decisions dated July 29, 2003 and January 7, 2004.

 

The processing of this request has been a long and drawn out process to date.  Both the appellant and the Ministry claim that the other is responsible for the delays and confusion.  What is important at this juncture is to bring some clarity and finality to the process so that the parties can proceed to deal with any substantive issues that may result from final access decisions being issued. 

 

To date, the appellant has been issued an interim decision on July 29, 2003 for which she has paid a deposit and has not received a final decision.  On January 9, 2004, she received another interim decision for records she believes were not included in the July 29th interim decision, and for which she still has not received a final decision.  I believe that the issuance of a further interim decision on February 11, 2004, does nothing to bring clarity or finality to this matter.

 

 

The Ministry’s interim decision, dated January 9, 2004, was meant to address the part of her request that the appellant believed had been inappropriately reduced.  The decision indicates that the fee estimate for the additional records is a total of $187.50, excluding the cost of maps.  The Ministry did not request a fee deposit or time extension, but asked the appellant to provide written acceptance of the interim decision before proceeding to process this part of her request.

 

The appellant wrote to the Ministry on January 14, 2004 enclosing an additional $145.30.  At that point, rather than clearly accepting the Ministry’s interim decision, the appellant voiced her displeasure over the series of events that brought her to this point.  However, the Mediator’s Report, which was issued to the appellant and the Ministry on January 26, 2004, confirmed that the appellant accepted the Ministry’s fee estimate.

 

In my view, the Ministry should have continued to process this part of the appellants request and issued a final decision when it received the Mediator’s Report confirming that the appellant accepted the Ministry’s fee estimate, with the exception of any records where notice to affected persons was required pursuant to section 28(1) of the Act.

 

I therefore find that the interim decision issued on February 11, 2004 does not remove the Ministry from being in a deemed refusal situation.

 

ORDER:

 

1.                  I order the Ministry to issue a final decision letter regarding access to the records identified in the interim decision letters dated July 29, 2003 and January 7, 2004 in accordance with the Act and without recourse to a time extension, transferring the request and/or records to another institution, or additional fees, no later than February 27, 2004.

 

2.                  The Ministry shall disclose the records to the appellant, where its decision is to grant access and notice pursuant to section 28(1) of the Act is not required, within three days after payment of the balance of the fee has been received.  

3.                  For those records where notice pursuant to section 28(1) of the Act is required for some records, the notice shall be issued no later than February 27, 2004 with a return date for submissions of March 18, 2004.

4.                  I order the Ministry to issue a final decision on the records where notice pursuant to section 28(1) of the Act is required shall be issued no later than March 22, 2004.

 

5.                  The Ministry shall disclose the records to the appellant, where its decision is to grant access and notice pursuant to section 28(1) of the Act is required, within three days after payment of the balance of the fee has been received.  

 

6.                  In order to verify compliance with Provisions 1 and 4 of this Order, I order the Ministry to provide me with a copy of the decision letters referred to in Provisions 1 and 4 within seven days of issuance.  These should be forwarded to my attention, c/o Information and Privacy Commissioner/Ontario, 80 Bloor Street West, Suite 1700, Toronto, Ontario, M5S 2V1.

 

 

Original signed by:                                                                        February 20, 2004                                             

Robert Binstock

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