Access to Information Orders
Decision Information
• Negotiation Reports
• Section 24 (reasonable search) - adequacy of Ministry's search for records upheld.
• Sections 18(1)(c) and (d) (valuable government information) - not upheld.
• Section 2(1) "personal information" - records contain personal information of appellant and other individuals.
• Section 49(b) (personal privacy) partly upheld.
• Some information withheld by the Ministry ordered disclosed.
Decision Content
NATURE OF THE APPEAL:
The Ministry of Transportation (the Ministry) received a multi-part request under the Freedom of Information and Protection of Privacy Act (the Act) from an individual for information relating to his work for the Ministry as a land appraiser. The requester sought access to any records that:
1. Describe complaints made by four property owners about his interaction with them (as well as disclose their names).
2. Describe what the requester refers to as “irregularities” in a letter identified by the appellant.
3. Indicate why the requester’s score on an identified CPA (consultant performance appraisal) remained the same as his score on the previous CPA.
4. a) Indicate why a recommendation was made on an identified comments page to “strike his name from the list of approved appraisers” and why no page 4 was attached to the first CPA, when there was a page 4 attached to the second CPA;
b) Indicate the reasons why he is now limited to appraisals of equal or lesser complexity.
The Ministry identified records responsive to the request and, in its decision letter, responded as follows:
• Relying on the exemption in sections 18(1) (economic and other interests) and 49(b) (personal privacy) with reference to section 21(1) of the Act, the Ministry denied access to the records that were responsive to Item 1 of the request.
• The Ministry identified two CPA’s as being responsive to Item 2 of the request and granted access to them, in full.
• The Ministry advised that there were no records in existence that were responsive to Item 3 of the request.
• With respect to Items 4(a) and (b) the Ministry identified the two CPA’s referred to under Item 2 as the responsive records to that part of the request. As noted above, Ministry granted access to these records. The Ministry advised that the first CPA has a fourth page that was attached when it was provided to the appellant.
The requester (now the appellant) appealed the decision denying access to the records responsive to Item 1 of the request. The appellant also asserted that further records exist that are responsive to Items 2, 3 and 4.
Mediation did not resolve the appeal and the matter moved to the adjudication stage of the appeal process.
I commenced the adjudication phase of the appeal by preparing a Notice of Inquiry setting out the issues and inviting representations from the Ministry and a number of parties whose interests may be affected by disclosure of the records. Representations were received in response to the Notice from the Ministry and three affected parties. The Ministry asked that a portion of its representations not be shared due to confidentiality concerns. The position of the three affected parties’ who filed representations was that the information in the negotiation reports was private and confidential. I then sent a Notice of Inquiry, along with the Ministry’s non-confidential representations, to the appellant. The appellant filed representations in response to the Notice. The appellant’s representations do not squarely address the issues that were set out in the Notice. Instead, for the most part, the appellant’s representations contain a series of statements and questions challenging how the Ministry reached a conclusion about his performance rating. In answer to an inquiry from this Office during the adjudication of the appeal, the appellant confirmed that he is only seeking the portion of the records that contains the names of the complainants and the complaint itself. This assisted the adjudication process by even further focusing the inquiry.
RECORDS:
The records at issue in this appeal consist of four negotiation reports. The portions of the records that are responsive to Item 1 of the request consist of the names of the property owners and certain comments about the appellant that are contained in the negotiation reports.
DISCUSSION:
SEARCH FOR RESPONSIVE RECORDS
Section 10(1)(a) of the Act states:
Every person has a right of access to a record or a part of a record in the custody or under the control of an institution unless,
the record or part of the record falls within one of the exemptions under sections 12 to 22.
Section 2(1) of the Act provides a definition of the word "record". The definition reads, in part:
“record" means any record of information however recorded, whether in printed form, on film, by electronic means or otherwise ...
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]. Although an appellant 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 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 within its custody or control [Order P‑624].
A reasonable search is one in which an experienced employee expending reasonable effort conducts a search to identify any records that are reasonably related to the request (see Order M‑909).
The Ministry submits that it “went to considerable lengths to clarify the appellant's request” and explains that:
On June 9, 2006, the appellant called the Ministry's FOI Office regarding a privacy complaint. In a discussion which lasted 45 minutes, the FOI Manager was advised by the appellant that he also wanted access to comments from the affected parties referenced in the CPAs and an explanation as to why his score remained unchanged in the June CPA. The FOI Manager provided an overview of the Act and explained that the Act allows for access to government records, but does not oblige the Ministry to answer questions.
On June 30, 2006, the Ministry's FOI Policy Analyst called the appellant to discuss his access request dated June 19, 2006. In a discussion which lasted over 30 minutes, the appellant again expressed the wish to have his questions answered as part of his access request. He was once again reminded that the Act provides access to records in the Ministry’s custody or control, and was given assistance to reword his request to seek specific records.
By letter dated July 4, 2006, the FOI Manager confirmed with the appellant his discussion with the Policy Analyst and the Ministry’s understanding of his clarified request. On July 14, 2006, the appellant called the FOI Manager in response to her July 4, 2006 letter. That day, he faxed suggested re-wording of parts of his request, and confirmed the clarified request with this re-wording. At that point, the Ministry initiated its search for responsive records.
With respect to the results of its search, the Ministry submits that it has identified all the responsive records and that no others exist. In support of this submission, the Ministry included with its representations an affidavit prepared by the staff person who carried out the search. The Ministry advises that this staff person was also directly involved in the review and approval of the December CPA and in the review of the June CPA. The Ministry submits that the affidavit demonstrates that the Ministry searched for any file where the appellant's appraisal services were retained by the Ministry. I have reviewed the affidavit which describes in detail the search that was undertaken and also explains why no other responsive records exist.
The appellant’s representations do not specifically address the adequacy of the Ministry’s search for responsive records. Instead, for the most part, the appellant’s representations contain a series of statements and questions challenging how the Ministry reached a conclusion about his performance rating.
Analysis and Findings
In Order M-493 Senior Adjudicator John Higgins provided some guidance with respect to the extent to which an institution should respond to questions directed to it by a requester, stating:
In my view, when such a request is received, the [institution] is obliged to consider what records in its possession might, in whole or in part, contain information which would answer the questions asked. Under section [24] of the Act, if the request is not sufficiently particular "... to enable an experienced employee of the institution, upon a reasonable effort, to identify the record", then the [institution] may have recourse to the clarification provisions of section [24(2)]."
I agree with Senior Adjudicator Higgins' reasoning and adopt it for the purposes of this appeal.
I am satisfied that the Ministry’s submissions demonstrate that it made a reasonable effort to assist the appellant in clarifying his request. Furthermore, the Ministry’s affidavit provides a thorough explanation of the efforts it made to identify and locate records that are responsive to the appellant’s request. The affidavit also explains why no other responsive records exist. Although a requester will rarely be in a position to indicate precisely which records the institution has not identified, the appellant still must provide a reasonable basis for concluding that such records exist. In my view, the appellant has not provided a reasonable basis for concluding that other responsive records exist. Accordingly, I am satisfied that the Ministry’s response to the appellant's request as well as its search for responsive records is in compliance with its obligations under the Act.
Therefore, I find that the Ministry has conducted a reasonable search for records as required by section 24 of the Act.
VALUABLE GOVERNMENT INFORMATION
The Ministry claims that the discretionary exemptions in sections 18(1)(c) and (d) apply to the comments about the appellant’s conduct that may have found their way into the negotiation reports.
Sections 18(1)(c) and (d) of the Act state:
A head may refuse to disclose a record that contains,
(c) information where the disclosure could reasonably be expected to prejudice the economic interests of an institution or the competitive position of an institution;
(d) information where the disclosure could reasonably be expected to be injurious to the financial interests of the Government of Ontario or the ability of the Government of Ontario to manage the economy of Ontario.
Broadly speaking, section 18 is designed to protect certain economic interests of institutions. The report titled Public Government for Private People: The Report of the Commission on Freedom of Information and Individual Privacy 1980, vol. 2 (Toronto: Queen’s Printer, 1980) (the Williams Commission Report) explains the rationale for including a “valuable government information” exemption in the Act:
In our view, the commercially valuable information of institutions such as this should be exempt from the general rule of public access to the same extent that similar information of non-governmental organizations is protected under the statute . . . Government sponsored research is sometimes undertaken with the intention of developing expertise or scientific innovations which can be exploited.
Sections 18(1)(c) and (d) take into consideration the consequences that would result to an institution if a record was released [Order MO-1474]. For sections 18(1)(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 [See Ontario (Workers’ Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464, (C.A.)].
The Representations of the Ministry
The Ministry submits that the negotiation reports are kept confidential because it wants to be able to receive full and frank information from property owners about appraisers it retains. The Ministry submits that disclosing such evaluative information could lead to the "drying up" of the sources of this information. The Ministry submits that if any such comments are disclosed, the Ministry could not guarantee to members of the public that information it receives about its appraisers, and which it intends to use for evaluative purposes (such as those contemplated in the discretionary exemption at section 49(c) of the Act), could be withheld from those contractors. This, the Ministry submits, could reasonably be expected to make it more difficult for it to obtain frank assessments of its appraisers, to evaluate the effectiveness of its operations and to plan for the future.
The appellant makes no specific representations with respect to the application of the discretionary exemptions at sections 18(1)(c) and/or (d) of the Act.
Section 18(1)(c)
I find that the Ministry has failed to provide me with sufficiently detailed evidence to establish that disclosure of the comments about the appellant that may have found their way into the negotiation reports could reasonably be expected to result in the harm contemplated by the section 18(1)(c) exemption. The Ministry acknowledges that the CPA’s are the only documents used by the Ministry in rating its appraisers and consultants. The information the appellant seeks relates to comments about him that may have found their way into the negotiation reports, not the CPA’s. I am not satisfied that there is sufficient evidence before me to support the Ministry’s contention that without the comments that may have found their way into the negotiation reports, it would not otherwise be able to conduct an evaluation of its appraisers. As a result, I find that the evidence and submissions tendered by the Ministry in support of its argument that any such comments are exempt under section 18(1)(c) are speculative at best. I conclude that the generalized statements made by the Ministry in support of its position do not satisfy the “detailed and convincing” evidentiary standard accepted by the Court of Appeal in Ontario (Workers’ Compensation Board), cited above.