ORDER MO-3826

Appeal MA19-00074

St. Thomas Police Services Board

September 6, 2019

Summary: The St. Thomas Police Services Board (the police) received a request under the Municipal Freedom of Information and Protection of Privacy Act  from an individual for access to information relating to him. At the close of mediation, the only issue that remained to be resolved was the reasonableness of the police’s search for responsive records. In this order, the adjudicator finds that the police conducted a reasonable search for responsive records and dismisses the appeal.

Statutes Considered: Municipal Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. M.56 , as amended, section 17.

BACKGROUND:

[1]  The St. Thomas Police Services Board (the police) received a request under the Municipal Freedom of Information and Protection of Privacy Act  (the Act  or MFIPPA ) from an individual for access to the following information:

Name, employee #, position, salary of all employees with STPS. Any and all information, press releases, policies regarding the intent and use of the community room. Any and all information, field notes, audio/video recordings, reports with my name attached or referred to including report #’s [specified occurrence reports].

[2]  The requester also indicated the name and badge numbers of what he described as seven involved officers.

[3]  After extending the time to respond to the request under section 20(1)(a) of the Act the police issued an access decision. The police granted partial access to the responsive records, relying on sections 8(1)(e) (endanger life or safety), 8(1)(l) (facilitate commission of an unlawful act) and 15(a) (information published or available to the public) to deny access to the portion they withheld. [1] The police further advised that “there are no written policies in existence in regards to the intent and use of the community room”. The police also took the position that certain information in the records was not responsive to the request.

[4]  After receiving further correspondence from the requester and waiving a fee for processing the request and photocopies, the police provided access to the information they decided to disclose.

[5]  The requester (now the appellant) appealed the police’s access decision.

[6]  At mediation, the appellant took the position that the police failed to conduct a reasonable search for responsive records and this ultimately became the only issue to be addressed in this appeal. As mediation did not resolve the appeal, it was moved to the adjudication stage of the appeal process where an adjudicator conducts an inquiry under the Act .

[7]  I commenced my inquiry by sending a Notice of Inquiry to the police asking for their representations on the reasonableness of their search for responsive records. The police provided representations in response. I then sent a Notice of Inquiry to the appellant accompanied by the police’s non-confidential representations. The appellant provided responding representations.

[8]  In this order I uphold the reasonableness of the police’s search for responsive records and dismiss the appeal.

DISCUSSION:

[9]  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. [2] 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.

[10]  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. [3] To be responsive, a record must be “reasonably related” to the request. [4]

[11]  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. [5]

[12]  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. [6]

[13]  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. [7]

The police’s representations

[14]  The police provided an affidavit of their Freedom of Information Analyst in support of the reasonableness of their search for responsive records.

[15]  She states that she queried the appellant’s name in their Records Management System and found two incidents related to the appellant. She then sent an all- encompassing email to all police employees asking for the notes of anyone who had spoken to the appellant. She states that she also sent an email to the police IT department requested retrieval of any video recordings.

[16]  She states that she subsequently sent another email to all police employees asking one more time for any notes made of interactions with the appellant and to advise if the appellant “had been spoken to in an area for which video recording would exist”.

[17]  She states that she then received an email from a named staff sergeant advising that there were two video recordings of interactions with the appellant but that the audio portion was not working. She states that the two video recordings were disclosed to the appellant.

[18]  She adds that all emails referred to in her affidavit were also disclosed to the appellant.

[19]  Finally, she states that she reviewed the police Adequacy Standards Manual and the police In-house Policies Manual and found no policy regarding the community room, and also confirmed with a named police inspector that no written policy or directive existed “regarding the intent and use of the community room”.

The appellant’s representations

[20]  The appellant indicates in his representations that he intends to gather all lawfully available information to pursue legal proceedings. That said, the balance of his representations, including those referring to the Canadian Victims Bill of Rights [8] is focussed on why he requested the information, his concerns about the conduct of the police, and why he should be provided access to responsive records, rather than providing a reasonable basis for concluding that additional undisclosed records ought to exist.

Analysis and finding

[21]  As set out above, the Act  does not require the institution to prove with absolute certainty that further responsive 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. Based on the evidence before me, and having reviewed a copy of the records disclosed to the appellant, I am satisfied that a search was conducted and managed by an experienced employee of the police knowledgeable in the subject matter of the request, and a reasonable effort was expended to locate records within the police’s custody and control, which are reasonably related to the request.

[22]  In all the circumstances, I am satisfied that the police have demonstrated that their search for responsive records is in compliance with its obligations under the Act . Accordingly, I find that the police conducted a reasonable search for responsive records.

ORDER:

1. I uphold the reasonableness of the police’s search for responsive records.
2. The appeal is dismissed.

Original signed by		September 6, 2019
Steven Faughnan
Adjudicator