Access to Information Orders
Decision Information
•
Operator's Manual for a Radar Speed Detection System
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Section 22(a) (information published or publicly available) - not upheld.
• Ministry ordered to disclose record.
Decision Content
NATURE OF THE APPEAL:
The Ministry of Community Safety and Correctional Services (the Ministry) received a multi-part request under the Freedom of Information and Protection of Privacy Act (the Act) for access to:
The Operations Manual & Users Manual for [a specified] Radar Speed Detection System used by [an identified Police officer] on March 3, 2006.
The maintenance records for the [specified] Radar Speed Detection System for a period of 60 days prior to March 3, 2006 and 60 days after March 3, 2006.
The training records of [the identified Police officer] for any Speed Detection Device.
The Calibration Certificate for the [specified] Laser Speed Detection System that shows the device complies with the Calibration Requirements for Traffic Enforcement Equipment.
A copy of the Guide to Calibration Requirements for Traffic Enforcement Equipment.
In its decision letter, the Ministry informed the appellant that the Calibration Certificate for the specified Radar Speed Detection System was no longer available and that no maintenance records could be located for the specified Radar Speed Detection System for the identified time period. The Ministry also advised that the calibration requirements for the device were contained in the Operator’s Manual. The Ministry further advised that it was relying on section 22(a) of the Act (information published or publicly available) to deny access to the Operator’s Manual for the specified Radar Speed Detection System, and the exclusionary provision in section 65(6) of the Act (labour relations and employment records) to deny access to the training records of the specified police officer.
The requester (now the appellant) appealed the decision denying access.
At mediation, in response to some additional information provided by the appellant, the Ministry identified the Operator’s Manual at issue in this appeal as the only record that was responsive to the appellant’s request. The Ministry advised that a manual it previously forwarded to this Office was not a responsive record. The appellant confirmed that access was not being sought to the non-responsive manual. The appellant also indicated that he was no longer seeking access to any maintenance record for the specified Radar Speed Detection System, any calibration certificate or to the guide to calibration requirements. As a result of mediation, a request for access to all of those records and to a separate guide to calibration requirements is no longer an issue in the appeal.
Mediation did not resolve the appeal and it was moved to the adjudication stage of the appeals process.
I sent a Notice of Inquiry setting out the facts and issues in the appeal to the Ministry and a party whose interests may be affected by disclosure of the record, initially. Only the Ministry filed representations in response to the Notice, which included an email that it had received from the affected party. The Ministry advised that its representations could be shared in full, but requested that the consent of the affected party be obtained before sharing the email. The affected party consented to sharing the email and I then sent a Notice of Inquiry to the appellant, along with the complete representations of the Ministry and the affected party’s email (with certain identifiers removed). The appellant provided representations in response to the Notice. After reviewing the appellant’s representations, I determined that they raised issues to which the Ministry should be given an opportunity to reply. Accordingly, I sent a letter to the Ministry enclosing the representations of the appellant (with certain identifiers removed) seeking its reply. The Ministry provided representations in response.
I then issued Order MO-2263, which resulted from another appeal, but addressed similar issues to those raised in this appeal. In an effort to determine whether my findings in that order narrowed the issues in this appeal, I arranged for the mediator to contact both the Ministry and the appellant for their respective positions. In response, the Ministry provided a letter further explaining the basis for its application of section 22(a), along with a copy of a letter it had sent to the appellant in that regard. For his part, the appellant advised the mediator that, as a result of my order, access was no longer being sought to the training records of the specified police officer. Accordingly, the Training Certificate that the Ministry identified as responsive to the request and the application of the exclusionary provision in section 65(6) of the Act (which was only claimed for that record) is no longer at issue in the appeal. The appellant continued to seek access to the Operator’s Manual for a specified Radar Speed Detection System.
This second attempt at mediation did not resolve the appeal, but before I shared the Ministry’s reply submissions with the appellant, I decided to provide the Ministry with a formal opportunity to make submissions on the impact of Order MO-2263 and, in particular, whether a record can be available to the public when the system of access is through a private sector entity. I referred in that regard to Orders MO-1573, P-327 and P-496 of this office. The Ministry provided submissions in response.
I then provided the appellant with an opportunity to make submissions on the Ministry’s non-confidential reply and supplementary representations, the correspondence it sent to the mediator, and on Order MO-2263. The appellant provided extensive representations in response.
As a result of mediation, all that remains at issue in this appeal is whether section 22(a) applies to the Operator’s Manual for a specified Radar Speed Detection System.
RECORDS:
The record at issue in the appeal is an Operator’s Manual for a specified Radar Speed Detection System.
DISCUSSION:
SCOPE OF THE REQUEST
The appellant submits that the request was for a specific document, not a generic one and while the distributor can supply a similar document, it cannot provide a copy of the specific manual requested. The appellant argues that the Act makes no provision for the substitution of similar records when a request is for a specific one, and section 22(a) only applies when the specific record or specific information is available to the public.
In reply, the Ministry submits that, as worded, the appellant’s request is for access to the manual for the specified Radar Speed Detection System used by the Police officer on March 3, 2006. The Ministry submits that the named police officer was contacted and advised that he believes that a copy of the corresponding manual was included in the manufacturer’s package that contained the Radar Speed Detection System.
Based on the wording of the request, I conclude that, properly interpreted, the appellant’s request is for the manual that corresponds to the specified Speed Laser Detection System used by the specified Police officer on March 3, 2006 and not for a particular copy of a manual that may, or may not, be in the care, custody or control of the named Police officer.
INFORMATION CURRENTLY AVAILABLE TO THE PUBLIC
The Ministry and the affected party assert that the Operator’s Manual for the specified Radar Speed Detection System is available for purchase and thereby qualifies for exemption under section 22(a) of the Act.
If information is publicly available, it may be exempt under section 22(a), which reads:
A head may refuse to disclose a record where,
the record or the information contained in the record has been published or is currently available to the public.
For this section to apply, the institution must establish that the record is available to the public generally, through a regularized system of access. [Order P-327]
To show that a “regularized system of access” exists, it must be demonstrated that
- a system exists
- the record is available to everyone, and
• there is a pricing structure that is applied to all who wish to obtain the information
[Order MO-1881]
Previous orders of this office have addressed whether a record is publicly available. Examples of the types of records and circumstances that have been found to qualify as a “regularized system of access” include,
- unreported court decisions [Order P-159]
- statutes and regulations [Orders P-170, P-1387]
- property assessment rolls [Order P-1316]