Access to Information Orders
Decision Information
NATURE OF THE APPEALS: Ministry of the Environment (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for a copy of the complete Ministry and Ontario Clean Water Agency (OCWA) files relating to a pilot project conducted in Wiarton Ontario during the summer of 2000. The project involved the replacement of chlorine with chlorine dioxide in the town’s drinking water. The request also listed five specific items in addition to the general request for complete files. The Ministry transferred part of the request under section 25 of the Act to OCWA because it was felt that OCWA had a greater interest in some of the requested records. The Ministry transferred items 1, 3 and 5 of the request and in its cover letter to OCWA indicated that the Ministry will respond to items 2, 4 and part of 5. The Ministry attached a copy of the request, which included the request for access to the complete OCWA file, to the cover letter. Item 1 of the request asks for the results of a survey conducted by OCWA following the project referred to above. Item 3 requests a copy of the materials pertaining to a presentation at a town public meeting in October 2000, attended by an OCWA representative, in which Wiarton residents were presented with a town map marking the locations of complaints of problems with town water after the addition of chlorine dioxide. This item also asks for the recorded minutes of the meeting. Item 5 requests the Wiarton Water Treatment Plant records of chlorine, chlorine dioxide, chlorite and chlorate concentrations measured at the plant effluent and in the distribution system, and the disinfectant dosage applied at the intake and post-filtration locations. This item covers the period from early June to mid September 2000. OCWA responded by providing the requester with the survey results, with personal information removed (item 1 of the request). OCWA informed the requester that it does not possess any presentation materials or minutes relating to the public meeting held in October 2000; that the Operations Manager at the time did not prepare a formal presentation, but simply responded to questions posed by residents and did not prepare or receive minutes of the meeting (item 3 of the request). OCWA provided the requester with the Water Treatment Plant records requested in item 5 of the request and explained that the water sampling and analysis extended from June 20, 2000 to August 14, 2000, and not to mid September as stated in the request. The requester appealed OCWA’s access decision on the basis that additional records should exist in response to his request. In particular, he is of the view that OCWA did not provide him with its complete file relating to the project described above. Mediation did not resolve the appeal. I sent a Notice of Inquiry to the appellant and OCWA informing them that an oral inquiry will be held to determine whether OCWA conducted a reasonable search for all records that respond to the request. The oral inquiry was conducted via teleconference. OCWA was represented by the Manager, Corporate Planning and Communications who is also the Freedom of Information Co-ordinator (the Co-ordinator). He was accompanied by an Operations Manager. The appellant provided representations on his own behalf. Both parties also provided written representations prior to the oral inquiry, which they shared with each other. DISCUSSION: Introduction 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 24 of the Act [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. Representations In its written representations, OCWA provided the following background to its role in the Wiarton Chlorine Dioxide Trials: The Ontario Clean Water Agency is a Provincial Crown Agency with a mandate to provide water and wastewater services to our client municipalities on a cost recovery basis. OCWA was, and currently is, the operator of the Wiarton Water Treatment Plant and related distribution system. OCWA is responsible for the day-to-day operation of the Wiarton facility including both breakdown and proactive maintenance, adding process chemicals and undertaking a water sampling program as required by Provincial water regulations. The Agency’s Operation Manager for the area is responsible for the safe operation of this facility as well as dozens of water and wastewater facilities across Grey-Bruce County and beyond. The availability of records for this file reflects OCWA’s role as a third party to the pilot project conducted by [a named chemical company] under the direction of the Ministry of the Environment. OCWA’s role during the chlorine dioxide trial was limited to the physical addition of the chlorine dioxide generated by [the named chemical company] into the system, ensuring trial activities did not upset the day-to-day operation of the facility, and gathering routine sample data. The Agreement to pilot the project was between [the named company] and the Municipality of South Bruce that includes the amalgamated town of Wiarton. Approvals to proceed with the project were sought by [the named company] and the Municipality through the Ministry of the Environment. [The named company] installed, maintained and monitored the equipment that created the chlorine dioxide solution. [The named company] was also responsible for performing additional monitoring activities of the distribution system. The Ministry of the Environment established reporting requirements and oversaw the pilot project. [The named company] was responsible in meeting the Ministry’s reporting requirements. At the oral inquiry, the appellant referred to OCWA’s written representations in which it described its initial search. The appellant pointed out that the search was limited to files located at the Wiarton Water Treatment Plant and files located at the Southhampton Hub Office and limited to only the paper files for the project. The appellant believes that the search was too restricted. The appellant submited that he has received no records reflecting how approval for OCWA’s participation in the project was obtained. The appellant submitted documentation containing references to complaints by residents about the effect of the addition of chlorine dioxide to the water and OCWA’s participation, along with other bodies, in addressing the complaints. According to the appellant, he received no records reflecting how complaints by residents were addressed. According to the appellant, he received one e-mail from OCWA. This was the only electronic record disclosed to him. With respect to the survey conducted by OCWA, the appellant stated that OCWA did disclose copies of the actua