ORDER 107

 

Appeal 890070

 

Ministry of Housing

 

 

 

 

 

 

October 24, 1989

 

 

 

 

VIA PRIORITY POST

 

 

Appellant

 

 

 

 

 

Dear Appellant:

 

Re:  Order 107

Ministry of Housing

  Appeal No. 890070 

 

This letter constitutes my Order in your appeal from the decision of the Ministry of Housing (the "institution"), regarding your request for information made under the Freedom of Information and Protection of Privacy Act, 1987 (the "Act").

 

The appeal file indicates that on December 13, 1988 you wrote to the institution asking for the following:

 

...all documents pertaining to the polls that have been tabled in the Legislature from January 1, 1985 to the present date, excluding the information on these polls that has already been tabled. This information would include: the complete analyses of the polling results, documents regulating or giving instructions to take polls, documents indicating the costs of taking these polls and the bills or instructions for billing.

 

I consider any document that contains public opinion on government policy over the last 3 years to come under the definition of polls: this would include surveys, consultants' reports, and any study conducted in combination with another group. In the latter instance, I request a breakdown of the percentage of questions allotted each party, and details of how the costs to each were calculated.

 

Further to this, I request under Section Z4(3) and Section 24(4) of the Freedom of Information Act, all of

the above documentation for a period of 2 years, commencing January 1, 1989. I would ask that the schedule you send me sets down the time required to provide me with each of the above-mentioned documents after they are produced or received by your Ministry.

 

On January 18, 1989, the Freedom of Information and Privacy Co‑ordinator (the "Co‑ordinator") for the institution responded to your request as follows:

 

...I am pleased to advise you that access is available to all of the documents that have not been tabled pertaining to the polls that have been tabled in the Legislature from January 1, 1985, to the present date.

 

Please find enclosed a copy of the records.

 

With respect to your continuing access request over the next two years, we have not at this point in time scheduled any reports for tabling in the Legislature. We will, however, reactivate your request every six months and provide you with any documents we have within 30 days thereafter.

 

On February 3, 1989, you replied to the institution indicating that six-month intervals were not satisfactory and that you would prefer a continuing access schedule which would result in the request being reactivated every 30 days.

 

On March 8, 1989, the Co-ordinator replied, stating, in part, the following:

 

...We gave careful consideration to your request regarding the schedule of continuing access. As you know, in response to your request we have only conducted one poll since January 1, 1985, a period of more than four years. We have no plans to conduct any polls in the near future. Hence, we feel that reactivating your request every six months, and providing you with the information within 30 days thereafter, is reasonable.

 

On March 15, 1989, you wrote to me appealing the decision of the institution.

 

As you are aware, as soon as your appeal was received by my office, an Appeals Officer was assigned to investigate the circumstances of the appeal and attempt to mediate a settlement.

 

Settlement was not effected because you and the institution retained your original positions with respect to the proper application of subsection 24(4)(a) of the Act.

 

Accordingly, an Appeals Officer's Report was prepared and sent to you and the institution on July 4, 1989, together with a Notice of Inquiry. You and the institution were asked to make representations to me concerning the subject matter of the appeal.

 

I have received and considered representations from both parties in reaching my decision.

 

Section 24 of the Act reads as follows:

 

24.--(1) A person seeking access to a record shall make a request therefor in writing to the institution that the person believes has custody or control of the record and shall provide sufficient detail to enable an experienced employee of the institution, upon a reasonable effort, to identify the record.

 

(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).

 

(3) The applicant may indicate in the request that it shall, if granted, continue to have effect for a specified period of up to two years.

 

(4) When a request that is to continue to have effect is granted, the institution shall provide the applicant with,

 

(a)  a schedule showing dates in the specified period on which the request shall be deemed to have been received again, and explaining why those dates were chosen; and

 

(b)  a statement that the applicant may ask the Commissioner to review the schedule.

 

(5) This Act applies as if a new request were being made on each of the dates shown in the schedule.

 

If access to a requested record has been granted by an institution, subsection 24(3) provides a requester with the right to have this request continue to have effect for up to two years.  When this occurs, subsection 24(4) requires the institution to provide the requester with a schedule showing the dates on which it will re-consider the request and an explanation as to why those dates were chosen. If the requester is not satisfied with the institution's schedule, he or she may

apply to me for a review. The Act does not set out a specific basis for establishing a schedule, however, in my view, the general standard should be one of reasonableness.

 

In your representations you state that you "do not believe it would be an undue burden on the Deputy Minister to re-activate my request everyday, if not every 30 days. The Deputy Minister knows when a poll has been commissioned and when it is expected to be produced." Also, in support of your position, you argue that, because the government can legally call an election within a period of 40 days, it is important that candidates for election have quick access to all accessible information held by the government.

 

While I have some sympathy for your arguments, it is incumbent on me as Commissioner to consider the reasonableness of each continuing access schedule in the context of the overall operation of Ontario's access scheme. In this case, the institution has submitted that, at the time of your request, it had only conducted one poll in the previous four years. In its representations the institution stated:

 

We have no concerns in doing the above work if there is a reasonable possibility that relevant information exists. However, it seems unreasonable to do this every 30 days when it is clear that polls tabled in the Legislature are rarely conducted by our Ministry. There is an administrative cost each time a request is activated.

 

...We provided (the requester) with all requested information regarding his initial request. With respect to continuing access in the Act, we believe it is reasonable to have a schedule of dates relevant to the frequency of the production of the information. For example, a continuing access request for a quarterly report should be reactivated quarterly. In this case, only one poll was tabled in the Legislature in the past four and a half years. None are planned for the future. It would seem very reasonable to reactivate the request every six months.

 

...If in the future, our Ministry decides to conduct polls more often, we will give full consideration to reactivating (the requester's) request more frequently in order to provide him with good customer service.

 

The institution also disputed your arguments regarding the need for a more frequent time schedule, based on their understanding that you had accepted a six-month schedule with respect to the same request involving at least three other institutions.

 

I accept that it would be preferable for you to receive polling information as soon as it becomes available to the institution, however, in my view, it would be unreasonable in the circumstances for me to require the institution to respond in this manner. The historical infrequency of polling, and indications by the institution that this pattern is likely to continue, draw me to the conclusion that a 30-day continuing access schedule would be an unreasonable drain on the institution's resources and therefore on the public purse.

 

Consequently, I uphold the decision of the head, and Order that a six-month continuing access schedule be implemented with respect to your request. This schedule should commence on the first working day of the first month following the issuance of this Order.

 

In closing, I would also like to commend the institution on its undertaking to give consideration to reactivating your request more often should polling frequency increase. Although not included within the scope of this Order, I would encourage the institution to follow through with this undertaking.

 

Yours truly,

 

 

 

 

 

 

Sidney B. Linden

Commissioner

 

cc:  The Honourable John Sweeney

Minister of Housing

 

Mr. Howard Jones, FOI Co-ordinator