1. Staff report to Committees/Community Council.  Report to Council; Council amendments and decision and permission to view Parks and Recreation file and obtain copy of documentation if required – site plan/survey; elevation drawings; comments of city departments and other agencies

Agreements Leases – Mini Indy and sub-tenants

1. Permission to view and obtain copy of documentation between Mini Indy and sub tenants – Diamond Beach/Sports Leagues, etc.

During the mediation stage of the appeal the Mediator determined that the City had identified 25 records as responsive and disclosed all but Record 16, which was denied in its entirety, pursuant to the discretionary exemption in section 8(1)(i).  The City also denied access to portions of Records 12 and 25 under the mandatory invasion of privacy exemption in section 14(1).

By letter dated February 5, 2004, the City provided a further decision letter to the appellant responding to each of the items enumerated in her letter of appeal.  The City also granted access to additional records identified as responsive to the request (Records 26 to 141).  However, the City continued to deny access to documents containing building interior floor plans pursuant to section 8(1)(i) (Records 16, 119 and 136), the undisclosed portions of a lease agreement (Records 65-98) under the discretionary exemption in sections 11(c) and (d) and certain personal information in Records 12, 25, 40 and 41 under section 14(1).

In response to the February 5, 2004 decision letter, the appellant advised that she was no longer seeking access to the personal information in Records 12, 25, 40 and 41 and specified the records she was seeking.  The appellant indicated her wish to continue with the appeal, disputing the application of the discretionary exemptions claimed and the adequacy of the City’s search for responsive records. 

I sought and received the representations of the City, initially.  Those representations were then shared with the appellant, who also made submissions in response to the Notice of Inquiry provided to her.  Finally, the City made additional representations by way of reply.

RECORDS:

The records remaining at issue consist of:

• Records 16, 119 and 136-interior floor plans (section 8(1)(i))
• Records 65 to 98- the undisclosed portions of a lease agreement (sections 11(c) and (d))

DISCUSSION:

SECURITY OF A BUILDING

A head may refuse to disclose a record where the disclosure could reasonably be expected to,

endanger the security of a building or the security of a vehicle carrying items, or of a system or procedure established for the protection of items, for which protection is reasonably required;

Generally, the law enforcement exemption must be approached in a sensitive manner, recognizing the difficulty of predicting future events in a law enforcement context [Ontario (Attorney General) v. Fineberg (1994), 19 O.R. (3d) 197 (Div. Ct.)].

Except in the case of section 8(1)(e), where section 8 uses the words “could reasonably be expected to”, the institution must provide “detailed and convincing” evidence to establish a “reasonable expectation of harm”.  Evidence amounting to speculation of possible harm is not sufficient [Order PO-2037, upheld on judicial review in Ontario (Attorney General) v. Goodis (May 21, 2003), Toronto Doc. 570/02 (Ont. Div. Ct.), Ontario (Workers’ Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464 (C.A.)].

In this context, where concerns have been raised about the prospect of violent attacks against the facilities, section 8(1)(i) may be considered a “health and safety” related exemption. Accordingly, the City and the affected parties must provide evidence to establish a reasonable basis for believing that endangerment will result from disclosure.  In other words, it must be demonstrated that the reasons for resisting disclosure are not frivolous or exaggerated [Ontario (Information and Privacy Commissioner, Inquiry Officer) v. Ontario (Minister of Labour, Office of the Worker Advisor) (1999), 46 O.R. (3d) 395 (C.A.)].

•                     while the appellant has been given access by the Committee of Adjustment to certain site plans which describe the subject property as it exists today, those records do not include the type of detailed information that is contained in the records which are the subject of the request and appeal;

•                     the appellant and the affected parties are embroiled in a land use dispute that has lead to an intractable situation between them.  Although the appellant’s right of access to the records is a legitimate one and I have been provided with no evidence whatsoever to indicate that the appellant intends to use the records to encourage or create a security problem for the synagogue, disclosure to the appellant may be equated with disclosure to the world in these circumstances [Orders P-169 and PO-2197]; and

•                     the synagogue facility has been the subject of other threats and vandalism in the past and is now subject to certain restrictive security measures.  The concerns expressed by the affected parties concerning the security of the facility should disclosure of the requested information be ordered are not, in my view, frivolous or exaggerated.

As a result, I uphold the City’s decision to deny access to the requested records on the basis that they are exempt from disclosure under section 8(1)(i). 

A head may refuse to disclose a record that contains,

(c)                information whose disclosure could reasonably be expected to prejudice the economic interests of an institution or the competitive position of an institution;

(d)               information whose disclosure could reasonably be expected to be injurious to the financial interests of an institution

Broadly speaking, section 11 is designed to protect certain economic interests of institutions covered by the Act.  Sections 11(c) and (d) take into consideration the consequences which would result to an institution if a record was released.  [Order MO-1199-F]

In Order P-1190 (upheld on judicial review in Ontario Hydro v. Ontario (Information and Privacy Commissioner), [1996] O.J. No. 4636 (Div. Ct.), leave to appeal refused [1997] O.J. No. 694, Assistant Commissioner Mitchinson stated in reference to the provincial counterpart of section 11(1)(c):

In my view, the purpose of section 18(1)(c) is to protect the ability of institutions such as Hydro to earn money in the market-place.  This exemption recognizes that institutions sometimes have economic interests and compete for business with other public or private sector entities, and it provides discretion to refuse disclosure of information on the basis of a reasonable expectation of prejudice to these economic interests or competitive positions.

For sections 11(c) or (d) to apply, the institution must demonstrate that disclosure of the record “could reasonably be expected to” lead to the specified result.  To meet this test, the institution must provide “detailed and convincing” evidence to establish a “reasonable expectation of harm”.  Evidence amounting to speculation of possible harm is not sufficient [Ontario (Workers’ Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464 (C.A.)].

SCOPE OF THE REQUEST

Section 17 of the Act imposes certain obligations on requesters and institutions when submitting and responding to requests for access to records.  This section states, in part:

(1) A person seeking access to a record shall,

(a)        make a request in writing to the institution that the person believes has custody or control of the record;

(b)        provide sufficient detail to enable an experienced employee of the institution, upon a reasonable effort, to identify the record; and

.  .  .  .  .

(2) If the request does not sufficiently describe the record sought, the institution shall inform the applicant of the defect and shall offer assistance in reformulating the request so as to comply with subsection (1).

Institutions should adopt a liberal interpretation of a request, in order to best serve the purpose of spirit of the Act.  Generally, ambiguity in the request should be resolved in the requester’s favour [Orders P-134, P-880].

As is evident from the description of the request above, the appellant’s request was extremely broad in nature and potentially captured a large number of records from a variety of sources within the City’s record-holdings.  Because the request was so broadly-worded and all-encompassing in its approach, it was very difficult for the City to respond in a coherent and comprehensive fashion.  The appellant indicates that, in her view, additional records beyond those identified by the City ought to exist and that the City’s search for records was inadequate.

The City argues that it has responded to each of the enumerated items contained in the appellant’s request, suggesting that in some cases, the appellant is attempting to further broaden the scope of what was already a very broadly-worded request. 

The appellant takes issue with the City’s interpretation of certain parts of her request.  Specifically, the appellant seeks access to a Management Agreement entered into between the operator of the recreational facility and a private management company in 2002 and the 1996 lease agreement referred to above.  The City submits that these documents fall outside the ambit of the appellant’s original request while the appellant argues that they are responsive.  The appellant indicates that she has already obtained a copy of the 1996 lease agreement through legitimate means.  As a result, I find that no useful purpose would be serviced by ordering the City to provide her with an additional copy.  Insofar as the 2002 management agreement is concerned, I will order the City to undertake a search of its record-holdings for this document and provide the appellant with a decision letter respecting access to it, if it is located, within the time frame prescribed in section 19 of the Act.

In addition, the appellant is seeking access to a building permit relating to a Storage Area Room.  She indicates that she was shown a copy of this document in January 2004 and conceded at that time to the Building Department Customer Liaison Officer that she had “had not requested this information.”  I agree with the position taken by the City that, in the case of the building permit, this document falls outside the scope of the original request.

REASONABLENESS OF SEARCH

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].  If I am satisfied that the search carried out was reasonable in the circumstances, I will uphold the institution’s decision.  If I am not satisfied, I may order further searches.

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 [Order P-624].

Although a requester will rarely be in a position to indicate precisely which records the institution has not identified, the requester still must provide a reasonable basis for concluding that such records exist.

The appellant takes the position that additional records relating to building inspection reports in 2002 and 2003 ought to exist.  The City responded to this by pointing out that its second decision letter indicated clearly to the appellant whether responsive records existed with respect to each aspect of the requests, including those relating to building inspection reports.  I find that the appellant has not provided a reasonable basis for concluding that additional records relating to building inspections beyond those originally identified and disclosed by the City, in fact, exist.  As a result, I will dismiss this aspect of her appeal.

By way of conclusion, I find that although it required the intervention of the Mediator with the Commissioner’s office, the City has provided the appellant with a reasonable explanation as to the nature and extent of the searches it undertook for records responsive to all facets of her request, with the single exception described above.  Based on the content of those decision letters and the representations made by the City, I am satisfied that the searches undertaken for responsive records were reasonable in the circumstances.

ORDER:

1.         I order the City to provide the appellant with complete copies of Records 16, 65 to 98, 119 and 136 by October 5, 2004.

2.         I order the City to undertake a search of its record-holdings for the 2002 Management Agreement and provide the appellant with a decision letter respecting access to it, if it is located, within the time frame prescribed in section 19 of the Act and without recourse to a time extension under section 20 of the Act, treating the date of this order as the date of the request.

3.         With the exception of the search required under Order Provision 2, I dismiss the appeal with respect to the adequacy of the City’s search for responsive records.

                                                                                                       September 14, 2004                                           

Donald Hale