ORDER MO-3337

 

Appeal MA15-133

 

City of Hamilton

 

July 27, 2016

 

 

Summary:  The City of Hamilton (the city) received a request under the Municipal Freedom of Information and Protection of Privacy Act  (MFIPPA ) for complaints regarding by-law infractions in regards to a specific property. The city located responsive records and granted partial access to them. Access was denied to the withheld portions of the records pursuant to the discretionary law enforcement exemption in section 8(1) and the mandatory personal privacy exemption in section 14(1). In this order, the adjudicator upholds the application of the section 14(1) exemption to the personal information in the records. She also upholds the city’s determination as to the non-responsive information in the records, its fee, and its search for responsive records.

 

Statutes Considered:  Municipal Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. M.56 , as amended, sections 2(1) (definition of personal information), 14(1), 14(3)(b), 17(1), and 45(1).

 

Orders and Investigation Reports Considered:  Order MO-3276.

 

 

OVERVIEW: 

 

[1]       The City of Hamilton (the city) received the following request under the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA or the Act):

 

Would like all complaints to by-law (City of Hamilton) in regards to [a specific address (the property)]. The bylaw regarding tree cutting, long grass and garbage, parking in bicycle lane on [the street where the property is] and parking on grass at [the property] and [named] Reservoir. These to include order by [named city Councillor]. From Dec. 2005 to current.

 

[2]       The city issued a decision in response to the request and noted that the responsive records covered the period of 2011 to 2014. The city stated that the portion of the request regarding tree cutting was a duplicate of a request the requester had filed earlier.[1]

 

[3]       With respect to the long grass and garbage, the city explained that the requester had previously attended their office to request information about a private contractor, whom he believed was hired by the city to perform landscaping duties at the subject property. The city advised that a contractor would only be hired by the city if an order had been issued and the owner failed to comply with the order within the specified time period. In this instance, the city confirmed that an order was issued against the property, and that the property owner subsequently hired the contractor who completed the work, and the order was satisfied. 

 

[4]       With regards to the remainder of the request, the city granted partial access to the responsive records. Access was denied to the withheld portions of the records pursuant to the discretionary law enforcement exemption in section 8(1) and the mandatory personal privacy exemption in section 14(1)  of the Act.

 

[5]       The city noted that some information was withheld as it was not responsive to the request. The city also assessed fees for the search, preparation and copying of the records, totalling $98.90.

 

[6]       The requester (now the appellant), appealed the city’s decision. 

 

[7]       During the course of mediation, the appellant confirmed that he was disputing the city’s fee and its position on the non-responsiveness of portions of the records.

 

[8]       The mediator noted that the information withheld in the records, related to one individual other than the appellant (the affected party). The city confirmed that the affected party had not been notified of the request.

 

[9]       The appellant advised that he did not want employees’ numbers but did wish to pursue access to the affected party’s information. The appellant requested that the mediator contact the affected party to obtain their consent to disclose their information. The mediator contacted the affected party, who did not consent to the disclosure of their information to the appellant.

 

[10]    The appellant explained to the mediator that he believed that further records responsive to his request existed at the city on the basis that he was aware of two individuals who had complained to the city regarding the named property. 

 

[11]    The appellant noted that the records disclosed by the city only dated back to 2011, whereas he had requested records dating back to 2005. The appellant contended that the records should include orders to comply, or notices of compliance related to any complaints issued by the city. The city noted that an order to comply was included in the records disclosed to the appellant (Record 5-15).

 

[12]    With regards to the city’s statement that the portion of the request regarding tree cutting was a duplicate of a request previously filed by the appellant and, at that time under appeal at the IPC, the appellant advised the mediator that he does not accept the city’s view and confirmed that these records remain at issue in this appeal.

 

[13]    The mediator conveyed the appellant’s position to the city and requested it to conduct a further search for responsive records. The mediator explained that the appellant had identified two individuals who had also filed complaints against the named property and that those records were not included in the records disclosed to the appellant. The mediator also explained that the appellant did not want access to these individuals’ personal information, but to support his position that more records exist. 

 

[14]    In response, the city explained that the appellant has made 5 requests to the city since August 2014 concerning the same named property, in response to which city staff had already conducted multiple exhaustive searches. The searches conducted in response to those requests did not locate any responsive records for the period of December 2005 to 2010. 

 

[15]    The appellant did not accept the city’s explanation and wished to pursue access to the information related to the affected party, the non-responsive information, and the tree cutting information. He also maintained his view that further records responsive to his request exist at the city and continued to dispute the fee assessed by the city.

 

[16]    As mediation did not resolve all of the issues in this appeal, the file was transferred to the adjudication stage where an adjudicator conducts an inquiry. Representations were sought and exchanged between the city and the appellant in accordance with section 7 of the IPC’s Code of Procedure and Practice Direction 7. The affected party did not provide representations in response to the Notice of Inquiry sent to him.

 

[17]    In this order, I uphold the application of the mandatory personal privacy section 14(1) exemption to the personal information in the records. I also uphold the city’s determination as to the non-responsive information in the records, its fee, and its search for responsive records.

         

RECORDS:

 

[18]    The records at issue are set out in the following chart provided by the city:

 

Record #	Description	Exemption(s)	Information at issue in record
2	Computer screen print-out	14(1), 8(1)(d), 14(3)(b)	Personal information of a complainant and/or information that could be linked to complainant
3	Computer screen print-out	14(1), 8(1)(d), 14(3)(b)	Personal information of a complainant and/or information that could be linked to complainant
3-2	Handwritten notes	n/a	Non-responsive information about other municipal property addresses
3-3	Handwritten notes	8(1)(d), 14(3)(b) & n/a	Personal information of a complainant and/or information which could identify complainant Non-responsive information about other municipal property addresses
4	Computer screen print-out	14(1), 8(1)(d), 14(3)(b)	Telephone number of an identifiable individual which may or may not be a personal telephone number; and, personal information of a complainant and/or information that could be linked to complainant
4-2 to 4-3	Handwritten notes	n/a	Non-responsive information about other municipal property addresses
4-4	Handwritten notes	14(1) & n/a	Telephone number of an identifiable individual which may or may not be a personal telephone number; and non-responsive information about other municipal property addresses
4-5	Handwritten notes	14(1), 8(1)(d), 14(3)(b) & n/a	Telephone number of an identifiable individual which may or may not be a personal telephone number; personal information of a complainant and/or information that could be linked to complainant; and, non-responsive information about other municipal property addresses
4-6 to 4-7	Handwritten notes	n/a	Non-responsive information about other municipal property addresses
4-8	Handwritten notes	8(1)(d), 14(3)(b) & n/a	Information which could identify complainant; and, non-responsive information about other municipal property addresses
5-3 to 5-6	Handwritten notes	n/a	Non-responsive information about other municipal property addresses

 

ISSUES: 

 

A.       What is the scope of the request?  What records are responsive to the request?

 

B.       Do the records contain “personal information” as defined in section 2(1) and, if so, to whom does it relate?

 

C.       Does the mandatory personal privacy exemption at section 14(1) apply to the information at issue?

 

D.      Should the $98.90 fee be upheld?

 

E.       Did the institution conduct a reasonable search for records?

 

DISCUSSION: 

 

A.                What is the scope of the request? What records are responsive to the request?

 

[19]    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;

. . .

 

(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).

 

[20]    Institutions should adopt a liberal interpretation of a request, in order to best serve the purpose and spirit of the Act. Generally, ambiguity in the request should be resolved in the requester’s favour.^[2]

 

[21]    To be considered responsive to the request, records must “reasonably relate” to the request.^[3]

 

[22]    The city states that the non-responsive information in Records 3-2, 3-3, 4-2. 4-3, 4-4, 4-5, 4-6, 4-7, 4-8, 5-3, 5-4, 5-5, and 5-6 relates to other property addresses. It states that the request concerns one municipal property address. It states that the severed pages contain information about this address and also contain information about by-law investigations involving other municipal property addresses that have absolutely no relation to the property listed in the request.

 

[23]    The appellant did not provide representations in response to the city’s representations on this issue.

 

Analysis/Findings

 

[24]    The appellant sought in his request:

 

Would like all complaints to by-law (City of Hamilton) in regards to [a specific address (the property)]. The bylaw regarding tree cutting, long grass and garbage, parking in bicycle lane on [the street where the property is] and parking on grass at [the property] and [named] Reservoir. These to include order by [named city Councillor]. From Dec. 2005 to current.

 

[25]    I find that the appellant’s request provided sufficient detail to identify the records responsive to the request.

 

[26]    I find that the information in the records that the city has deemed to be not responsive to the request does not “reasonably relate” to the request, but is information about other properties not listed in the request. Therefore, I find that the non-responsive information in the records falls outside the scope of the appellant’s request.

 

B.                Do the records contain “personal information” as defined in section 2(1) and, if so, to whom does it relate?

 

[27]    In order to determine which sections of the Act may apply, it is necessary to decide whether the record contains “personal information” and, if so, to whom it relates.  That term is defined in section 2(1) as follows:

 

“personal information” means recorded information about an identifiable individual, including,

 

(a)      information relating to the race, national or ethnic origin, colour, religion, age, sex, sexual orientation or marital or family status of the individual,

 

(b)     information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,

 

(c)      any identifying number, symbol or other particular assigned to the individual,

 

(d)     the address, telephone number, fingerprints or blood type of the individual,

 

(e)      the personal opinions or views of the individual except if they relate to another individual,

 

(f)      correspondence sent to an institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to that correspondence that would reveal the contents of the original correspondence,

 

(g)     the views or opinions of another individual about the individual, and

 

(h)     the individual’s name if it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual;

 

[28]    The list of examples of personal information under section 2(1) is not exhaustive.  Therefore, information that does not fall under paragraphs (a) to (h) may still qualify as personal information.[4]

 

[29]    Sections 2(2.1) and (2.2) also relate to the definition of personal information.  These sections state:

 

(2.1) Personal information does not include the name, title, contact information or designation of an individual that identifies the individual in a business, professional or official capacity.

 

(2.2) For greater certainty, subsection (2.1) applies even if an individual carries out business, professional or official responsibilities from their dwelling and the contact information for the individual relates to that dwelling.

 

[30]    To qualify as personal information, the information must be about the individual in a personal capacity. As a general rule, information associated with an individual in a professional, official or business capacity will not be considered to be “about” the individual.[5]

 

[31]    Even if information relates to an individual in a professional, official or business capacity, it may still qualify as personal information if the information reveals something of a personal nature about the individual.[6]

 

[32]    To qualify as personal information, it must be reasonable to expect that an individual may be identified if the information is disclosed.[7]

 

[33]    The city states that the records all contain the personnel number of one or more city employees. It states that it is the city's understanding that the appellant does not wish to pursue access to this information.

 

[34]    The city states that Records 2, 3, 3-3, 4, 4-5, and 4-8 all contain the personal information of a complainant and/or information that could be linked to a complainant; this includes the complainant's name, address, telephone numbers, health information. and other identifiers contained in the Comment section that would identify the complainant.

 

[35]    The city states that Records 4-4 and 4-5 contain telephone numbers for identifiable individuals, which may or may not be personal telephone numbers (versus business telephone numbers).

 

[36]    The appellant states that he does not want personal information, but wants the dates and the nature of complaints about the property.

 

Analysis/Findings

 

[37]    All of the responsive information in the records contain details of the complaints about the property. The records do not contain the personal information of the appellant. They do contain the personal information of individuals other than the appellant, which is found in Records 2, 3, 3-3, 4, 4-4, 4-5, and 4-8.

 

[38]    The records consist of computer screen printouts, which are entitled “Service Request Detail”, as well as the handwritten notes of the by-law enforcement officers (the by-law officers).

 

[39]    The complainant in the records was acting in their personal capacity. The personal information in the records at issue includes the name, address, phone number and health information of the complainant, and their personal opinions or views of the property, in accordance with paragraphs (b), (c), (d) and (e) of the definition of personal information in section 2(1).

 

[40]    The appellant is not interested in the personal information of other individuals or the employee identification numbers, but is interested in the details of the complaints. Therefore, the name, address, and phone number of the complainant and the by-law officers’ identification numbers are not at issue, and I will not address them in this order.

 

[41]    Only the undisclosed details of the complaints are at issue. On my review of this information, I am satisfied that it is the personal information of an identifiable individual, as the complainant may be identified if the information is disclosed. I will, therefore, consider whether the mandatory personal privacy exemption applies to this information.

 

C.      Does the mandatory personal privacy exemption at section 14(1) apply to the information at issue?

 

[42]    Where a requester seeks personal information of another individual, section 14(1) prohibits an institution from releasing this information unless one of the exceptions in paragraphs (a) to (f) of section 14(1) applies.

 

[43]    In the circumstances, it appears that the only exception that could apply is section 14(1)(f), which allows disclosure if it would not be an unjustified invasion of personal privacy.

 

[44]    The factors and presumptions in sections 14(2) and (3) help in determining whether disclosure would or would not be an unjustified invasion of privacy under section 14(1)(f).  Also, section 14(4) lists situations where disclosure would not be an unjustified invasion of personal privacy.

 

[45]    If any of paragraphs (a) to (h) of section 14(3) apply, disclosure of the information is presumed to be an unjustified invasion of personal privacy under section 14. Once established, a presumed unjustified invasion of personal privacy under section 14(3) can only be overcome if section 14(4) or the “public interest override” at section 16 applies.[8]

 

[46]    In the circumstances, it appears that the presumption at section 14(3)(b) could apply. This section reads:

 

A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy if the personal information,

         

was compiled and is identifiable as part of an investigation into a possible violation of law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation;

 

[47]    The city states that Records 2, 3, 4, and 4-5 contain the personal information provided by a complainant when they submitted their complaint to the city and that further personal information was gathered in the course of the city by-law officer's investigations. It states that the personal information is highly sensitive and was supplied by the complainant with the expectation that the information would be treated as confidential.

 

[48]    The city states that a significant portion of the by-law enforcement process is complaint-driven and a complainant's anonymity is assured. It submits that an identifiable individual is more likely to lodge a by-law complaint if they are confident that their identity will not be disclosed. The city considers a complainant to be a confidential source in respect of law enforcement matters and as such it states that it protects the personal information and identifiers of a complainant.

 

[49]    The city states that Records 3-3 and 4-8 list addresses gathered in the course of a city by-law officer's investigation. It submits that while an address by itself is not considered to be personal information, the identity of the addresses in relation to the subject property, may suggest or confirm the address or proximity of a complainant.

 

[50]    The appellant did not respond to the city’s representations on this issue but instead provided details of his own complaints.

 

Analysis/Findings

 

[51]    The presumption in section 14(3)(b) can apply to a variety of investigations, including those relating to by-law enforcement.[9] 

 

[52]    I agree with the city that the personal information in the records was compiled during law enforcement investigations. This information was compiled by the by-law officers during their by-law enforcement investigations when they were investigating possible violations of law concerning the property.

 

[53]    Even if no criminal proceedings were commenced against any individuals, section 14(3)(b) may still apply. The presumption only requires that there be an investigation into a possible violation of law.[10] The presumption can also apply to records created as part of a law enforcement investigation where charges are subsequently withdrawn.[11]

 

[54]    Therefore, the information at issue in the records is subject to the presumption in section 14(3)(b). This presumption can only be overcome if section 14(4) or the “public interest override” at section 16 applies. In this appeal, neither sections 14(4) or 16 apply. Therefore, the personal information at issue in the records is exempt under the mandatory personal privacy exemption in section 14(1).

 

[55]    As I have found the information at issue exempt under section 14(1), it is not necessary for me to consider whether it is also exempt under section 8(1)(d).

 

D.                Should the $98.90 fee be upheld?

 

[56]    The institution must provide a requester with a detailed breakdown of the fee, and a detailed statement as to how the fee was calculated.[12]

 

[57]    This office may review an institution’s fee and determine whether it complies with the fee provisions in the Act and Regulation 823, as set out below.

 

[58]    Section 45(1) requires an institution to charge fees for requests under the Act.  That section reads:

 

A head shall require the person who makes a request for access to a record to pay fees in the amounts prescribed by the regulations for,

 

(a)      the costs of every hour of manual search required to locate a record;

 

(b)     the costs of preparing the record for disclosure;

 

(c)      computer and other costs incurred in locating, retrieving, processing and copying a record;

 

(d)     shipping costs; and

 

(e)      any other costs incurred in responding to a request for access to a record.

 

[59]    More specific provisions regarding fees are found in section 6 of Regulation 823, which reads:

 

6. The following are the fees that shall be charged for the purposes of subsection 45(1)  of the Act for access to a record:

 

1.       For photocopies and computer printouts, 20 cents per page.

 

2.       For records provided on CD-ROMs, $10 for each CD-ROM.

 

3.       For manually searching a record, $7.50 for each 15 minutes spent by any person.

 

4.       For preparing a record for disclosure, including severing a part of the record, $7.50 for each 15 minutes spent by any person.

 

5.       For developing a computer program or other method of producing a record from machine readable record, $15 for each 15 minutes spent by any person.

 

6.       The costs, including computer costs, that the institution incurs in locating, retrieving, processing and copying the record if those costs are specified in an invoice that the institution has received.

 

[60]    The city states that its search was conducted by five Parking and By-law Services staff and totalled 140 minutes and that the appellant was charged 140 minutes at $7.50 per 15 minutes.  It states that twenty-two pages were severed using the record preparation formula of two minutes per page at $7.50 per 15 minutes. In addition, thirty-four pages were copied using the photocopy formula of 20 cents per page.

 

[61]    In addition, the city states that it provided the appellant with information about requesting a fee waiver and that no attempts were made by the appellant to request one.

 

[62]    The appellant did not provide representations on this issue.

 

Analysis/Findings

 

[63]    The city based its fee on the actual work done to respond to the request. Its search, preparation, and photocopying fees are in accordance with sections 45(1)(a) to (c) and Regulation 823.

 

[64]    The city is allowed to charge a search fee of $7.50 for each 15 minutes spent by any person manually searching for records under section 45(1)(a) and part 3 of section 6 of Regulation 823.

 

[65]    Section 45(1)(b) allows the city to charge for severing records.[13] Generally, this office has accepted that it takes two minutes to sever a page that requires multiple severances.[14] The city has charged the appropriate amount for severing the records, which required multiple severances per page severed.

 

[66]    The city also charged the appropriate amount for photocopies under section 45(1)(c) and part 1 of section 6 of Regulation 823.

 

[67]    I agree with the city that it has adhered to the fee structure provisions in the sections of the Act and Regulations 823 outlined above. Therefore, I uphold the city’s fee of $98.90 as reasonable.

 

E.       Did the institution conduct a reasonable search for records?

 

[68]    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.[15] 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.

 

[69]    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.[16]  To be responsive, a record must be "reasonably related" to the request.[17]

 

[70]    A reasonable search is one in which an experienced employee knowledgeable in the subject matter of the request expends a reasonable effort to locate records which are reasonably related to the request.[18]

 

[71]    A further search will be ordered if the institution does not provide sufficient evidence to demonstrate that it has made a reasonable effort to identify and locate all of the responsive records within its custody or control.[19]

 

[72]    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.[20]

 

[73]    The institution was required to provide a written summary of all steps taken in response to the request. In particular, it was asked:

 

1.       Did the institution contact the requester for additional clarification of the request?  If so, please provide details including a summary of any further information the requester provided.

 

2.       If the institution did not contact the requester to clarify the request, did it:

 

(a)      choose to respond literally to the request?

 

(b)     choose to define the scope of the request unilaterally?  If so, did the institution outline the limits of the scope of the request to the requester?  If yes, for what reasons was the scope of the request defined this way?  When and how did the institution inform the requester of this decision?  Did the institution explain to the requester why it was narrowing the scope of the request?

 

3.       Please provide details of any searches carried out including: by whom were they conducted, what places were searched, who was contacted in the course of the search, what types of files were searched and finally, what were the results of the searches?  Please include details of any searches carried out to respond to the request.

 

4.       Is it possible that such records existed but no longer exist?  If so, please provide details of when such records were destroyed including information about record maintenance policies and practices such as evidence of retention schedules.

 

[74]    The city states that upon receipt of the request, the city's Planning & Economic Development Department Coordinator reviewed the request and forwarded the details to the department's Parking & By-law Services division, Municipal Law Enforcement section and the Hamilton Municipal System section for record searches. It states that the searches were undertaken by two by-law enforcement officers, a by-law enforcement supervisor, a municipal law enforcement manager, and the parking enforcement and school safety advisor, resulting in the records that were identified as responsive to the request.

 

[75]    The city states that the searches involved a search of the department's databases, coupled with a hard copy record search of municipal property files and the notebooks of two officers. It states that an electronic search of the databases identified responsive records such as the Service Request Detail forms that contain complainant information, city employee personnel numbers, and the notes and comments of city staff. The city states:

 

A search of the two [by-law] officers’ notebooks for the years 2005 to 2014 involved a search for the notebooks and then a reading of the notebook pages to identify responsive information for the municipal property address at issue in this appeal. It is noted that each notebook page typically contains written information about one or more municipal property addresses. The responsive records were reviewed by the staff in the city's Freedom of Information office, who subsequently identified the potential for additional responsive records. Staff from the Parking and By-law Services division completed secondary searches and confirmed the existence of additional responsive records which were sent to the City's Freedom of Information office to complete the record package.

 

[76]    The appellant did not provide representations on this issue. As noted above, the appellant explained to the mediator that he believed that further records responsive to his request existed at the city on the basis that he was aware of two individuals who had complained to the city regarding the named property. 

 

Analysis/Findings

 

[77]    Based on my review of the city’s representations, I find that the search conducted by the city for records responsive to the appellant’s request was reasonable.

 

[78]    As set out above, a reasonable search is one in which an experienced employee, knowledgeable in the subject matter of the request, expends a reasonable effort to locate records that are reasonably related to the request. I find that the city has provided sufficient evidence to demonstrate that it has made a reasonable effort to identify and locate responsive records within its custody or control. The city conducted a number of searches for records responsive to the request in a number of different departments.

 

[79]    Based on my review of the request, the records already located by the city, and the city’s representations, I find that there is not a reasonable basis for concluding that additional responsive records exist. In making that determination, I have considered the appellant’s submission to the mediator that he believes that two other individuals had complained to the city about the property. However, I find that the city has conducted an extensive search and that it has made a reasonable effort to identify and locate all of the responsive records within its custody or control.

 

[80]    In conclusion, I am satisfied that the city has demonstrated that it has conducted a reasonable search under the Act and I uphold the city’s search for records responsive to the appellant’s request.

 

ORDER:

 

I uphold the city’s decision and dismiss the appeal.

 

 

 

 

Original Signed By:                                                           July 27, 2016                 

Diane Smith

Adjudicator