ORDER MO-4251

Appeal MA20-00367

City of Vaughan

September 15, 2022

Summary: The City of Vaughan (the city) received a request under the Municipal Freedom of Information and Protection of Privacy Act  (the Act ) for information in any one of a number of specified formats. The city did not provide information in any of the specified formats. In this order, the adjudicator finds that it is reasonably practicable for the city to provide the requested information in one of the requested formats. As a result, she allows the appeal and orders the city to provide the information in a requested format to the appellant, or provide the appellant with a fee estimate to do so.

Statutes Considered: The Municipal Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. M.56 , as amended, sections 1 , 2(1)  (definition of “record”), and 23; section 1 of Regulation 823.

Orders Considered: Orders P-50, PO-1775, PO-3100, MO-2129, MO-2130, MO-4116.

Cases Considered: Toronto Police Services Board v. (Ontario) Information and Privacy Commissioner, 2009 ONCA 20 (CanLII).

OVERVIEW:

[1] This order resolves an appeal arising out of a request under the Municipal Freedom of Information and Protection of Privacy Act  (the Act ) to the City of Vaughan (the city) for computer aided dispatch data. The requester sought access to the information in any one of several possible formats. The request was the following:

Please provide Computer Aided Dispatch (CAD) data for the Vaughan Fire Rescue Service for Calendar years 2017, 2018, 2019. Calendar years shall all start January 1 at 00:00:00 hrs and end December 31 at 00:00:00 hrs.

The CAD data shall be provided in one of the following formats listed in order of preference from most preferred to least: excel, .csv, and Microsoft Access files. The CAD data shall include the following information:

1. The incident number

2. Date of the incident

3. The incident type/description

4. Units dispatched

[2] A more detailed summary of the requested records and preferred formats was attached to the request form.

[3] In response to the request, the city issued a decision, granting full access to the records. The city assessed a fee to process the request, and the requester paid it. The city then disclosed the records to the requester in an electronic graphic image record (JPEG within PDF) format, which is not one of the formats the requester specified. The requester, now the appellant, appealed the city’s decision to the Information and Privacy Commissioner of Ontario (IPC).

[4] The IPC appointed a mediator to explore resolution. During mediation, the appellant advised that the records disclosed by the city were not provided in one of the formats specified in the original request, and stated that the records are unusable. The mediator inquired with the city regarding disclosing the records in one of the formats specified by the appellant. The city maintained its position that it had met its obligations under the Act  by disclosing the records and would not be disclosing the records in a different format.

[5] No further mediation was possible, and the appellant requested that the appeal move to adjudication to pursue access to the records in one of the formats specified in the original request. At adjudication, an adjudicator may conduct an inquiry under the Act .

[6] As the adjudicator of this appeal, I began an inquiry under the Act  by sending a Notice of Inquiry, setting out the facts and issues on appeal, to the city. The city provided written representations in response. I then invited and received written representations from the appellant on the issues in the appeal, and shared a full copy of the city’s representations with the appellant. The parties exchanged reply and sur-reply representations. When I sought supplementary representations from the city on the appellant’s sur-reply representations, the city declined to provide representations.

[7] For the reasons that follow, I allow the appeal, and order the city to provide the information requested to the appellant in one of the formats specified in the request.

DISCUSSION:

[8] The only issue to be decided in this appeal is whether it would not be reasonably practicable for the city to provide the responsive information in one of the formats requested by the appellant.

[9] By way of background, the appellant, a firefighters’ association, seeks information in one of the formats specified in its request, and takes the position that the information exists in one of those formats in the city’s record holdings. It also states that the format that the city provided the information in is not useable. The city takes the opposite position, submitting that it fulfilled its requirements under the Act  to the best of the city’s ability, even if the appellant cannot use the information. The city also states that, to convert the information to one of the formats requested (specifically, Excel), would be too labour-intensive and would divert the city’s limited resources, which are already stretched thin. The appellant disagrees, and in the alternative, offers to have one of its representatives convert the information into Excel for the city.

[10] With this context in mind, I turn to the wording of section 23  of the Act , which addresses the manner of access to a record.

[11] Section 23  of the Act  says:

(1) Subject to subsection (2), a person who is given access to a record or a part of a record under this Act  shall be given a copy of the record or part unless it would not be reasonably practicable to reproduce it by reason of its length or nature, in which case the person shall be given an opportunity to examine the record or part.

(2) If a person requests the opportunity to examine a record or part and it is reasonably practicable to give the person that opportunity, the head shall allow the person to examine the record or part.

(3) A person who examines a record or a part and wishes to have portions of it copied shall be given a copy of those portions unless it would not be reasonably practicable to reproduce them by reason of their length or nature.

[12] If a requester seeks access to a record in a format other than that in which the record exists, the institution is required to effect the change of format where it is reasonably practicable for it to do so. [1]

[13] Also relevant here is the definition of a “record.” The term “record” is defined in section 2(1)  of the Act  as follows, in part:

any record of information however recorded, whether in printed form, on film, by electronic means or otherwise, and includes,

(a) correspondence, a memorandum, a book, a plan, a map, a drawing, a diagram, a pictorial or graphic work, a photograph, a film, a microfilm, a sound recording, a videotape, a machine readable record, any other documentary material, regardless of physical form or characteristics, and any copy thereof, and

(b) subject to the regulations, any record that is capable of being produced from a machine readable record under the control of an institution by means of computer hardware and software or any other information storage equipment and technical expertise normally used by the institution.

[14] The definition of “record” must be read in conjunction with section 1 of Regulation 823, which says:

A record capable of being produced from machine readable records is not included in the definition of “record” for the purposes of the Act  if the process of producing it would unreasonably interfere with the operations of an institution.

Representations

The city’s initial representations

[15] In its initial representations, the city responds to the issues identified in the Notice of Inquiry and identifies other factors that it believes I should consider. [2]

[16] The city states that the information requested is not available in an existing Excel format or other format specified by the appellant. The city also states that its system cannot export the data into an Excel format.

[17] The city states that information provided from Vaughan Fire and Rescue Service in a JPEG format would have to be searched for and retrieved again, and then the city could go on to determine how to convert the information into an Excel format (since, according to the city, the current system cannot export to Excel). The city states that this may involve converting the information into another format first, such as PDF, then creating an Excel document from that. The city states that this would not be a one-step process and would be “terribly time consuming for someone to do.”

[18] The city states that the appellant received full access to the information in an electronic format (JPEG), which the city says is “not the most desirable format for his purposes, but was the best the City could provide at the time.” The city stresses that the informational value of the records would not change if provided in a different format, but the requested format would only allow the appellant to manipulate the data as they see fit.

[19] The city states that the appellant has already received full access to the records, including the specific response time data that was initially requested. The city states that this is not an issue of accessibility, as explored in Order PO-1775 (which involved accommodating a vision-impaired individual), but rather one of usability. The city submits that the Act  does not contemplate the usability of a record, and the city is not allowed to consider use of a record or the information within a record after its release in any other circumstances (including how a requester may disseminate the record or how the record can be integrated with other systems that the city is unaware of), so as to preserve the objective nature of responses to freedom of information requests. The city states that the appellant has never given specifics of what he plans to do with the records, other than include it in some other system that is compatible with Excel.

[20] The city states that the information would have to be manually recorded by an employee into an Excel spreadsheet and that this would be labour-intensive and would require additional resources to be dedicated and/or diverted from other areas to do so, due to the size and scope of the request. In addition, the city states that resources are already stretched due to the COVID-19 pandemic, and especially so in Vaughan Fire and Rescue Services, which would be tasked with creating this record because that is where the data originated.

[21] On the issue of staff, the city states that since most of the staff who worked on the initial request, including the former Fire Chief, no longer work for the city, the city would have to redeploy new staff to redo the work; these employees may or may not be familiar with the system in question or know how to provide information in any specific format. The city states that this will add additional pressure and time, for a “rather arduous task,” given the amount of information that the city decided to provide full access to.

[22] Furthermore, with respect to whether there are extraordinary circumstances preventing the provision of the records in one of the formats requested by the appellant, the city says that it cannot afford to expend additional resources on a request that was already fulfilled. It states that (at the time of preparing its representations) its staff are working remotely and it would be “incredibly time consuming to create the record that suits [the appellant’s] technical needs beyond what we have been able to provide.” The city states that it should not bear the burden of additional work, or cost of manually completing work, for the appellant’s “personal project,” which is not related to the city in any way.

[23] In addition, the city states that providing the appellant with the records in one of the formats requested would be akin to creating a new record. The city reiterates that the data in question does not currently exist in the format specified and so a new record in one of the formats specified would need to be manually created.

The appellant’s representations

[24] By way of background, the appellant describes itself as the parent organization to a local firefighters’ association. It says that it was approached by the local firefighters’ association to help it with an independent analysis of the computer-aided dispatch data, in conjunction with a geographic information system (GIS) analysis, to assess the Vaughan Fire and Rescue Service’s capabilities against industry standards. The appellant states that this information was clearly communicated to the former city manager, through a data request letter to the city manager. The appellant asserts that the Vaughan Fire and Rescue Service is continually faced with “brownouts” [3] of fire apparatus due to low staffing, and the city was proposing removing a truck from service permanently and replacing it with a pickup truck staffed with two firefighters in a highly populated area that is exploding in growth with the construction of high-rises.

[25] The appellant submits that, contrary to the city’s representations, the information “already exists” in the format requested.

[26] More specifically, the appellant states that the Vaughan Fire and Rescue Service uses a specified software program as its Fire and EMS Records Management System. According to the appellant, this system stores the computer aided dispatch data and is where the city can extract an extensive amount of data as inputted from its computer aided dispatch system. In addition, the appellant states that software records can be exported to a variety of external data formats, including two that were specified in the request (.csv or Excel), directly from any existing browser query “with a simple click of the mouse.” The appellant provided a publicly available online link supporting this claim, as well as a screenshot of the step-by-step instructions for converting data to spreadsheet formats. Therefore, the appellant submits that the data exists in the format requested, but it just needs to be specified as an Excel file when it is being exported from the software. The appellant states that once the proper query is established, exporting it into an Excel format would take less effort than exporting it in the format that the city provided it in.

[27] The appellant argues that despite the city’s claim that the Vaughan Fire and Rescue Service seeks forward-looking analytic techniques to create greater value for citizens and the community through data-driven decision-making, [4] and the city’s extensive knowledge of how GIS is used, the city purposely provided the data in a format that it knew was unusable for GIS analysis. The appellant states that the ability to extract the data into one of the formats specified would have taken less effort and is one of several options that the FH software provides.

[28] Relying on Order M-1153, the appellant submits that the city has the onus of demonstrating that is not reasonably practicable for it to provide access to the information sought by the appellant in the electronic format which he has requested.

[29] The appellant submits that the information in the requested format would not require any additional specialized equipment or skills over and above what the Vaughan Fire and Rescue Service already has. The appellant acknowledges that if the data had to be manually inputted into Excel, that would be a labour-intensive task, but in the appellant’s view, that is not the case. Rather, the appellant states that the individuals currently employed by the Vaughan Fire and Rescue Services can extract the data in the requested format. In the alternative, the appellant offers to have one of its representatives extract the data if he were allowed to examine the records.

[30] The appellant also disagrees with the city that there are extraordinary circumstances preventing the provision of the records in one of the formats requested. The appellant states that staff can access the software remotely and easily, working from home. Given certain city statements about the importance of data and analytics to effective and accurate decision-making for resource allocation in mitigating the effects of fire, the appellant submits that the Vaughan Fire and Rescue Services will continue to use CAD data to help it with decision-making now, and in the future. The appellant submits that if there are not enough staff trained in the software to extract and interpret this CAD data, it would be to the city’s benefit to have additional staff who are working from home, trained in this software. [5]

[31] In any event, the appellant claims that of the five staff members who worked on the initial request and have extensive knowledge of the relevant software, the only individual no longer employed by Vaughan Fire and Rescue Service is the former Fire Chief. In support of the claim that the other four staff members are still employed with Vaughan Fire and Rescue Service, the appellant provides an email from the former deputy city manager.

[32] Furthermore, the appellant notes that the city states that it spent five hours acquiring the data for the initial request, and that the data was provided to the appellant as a 1.5 GB image file within a PDF document. According to the appellant, the relevant software does not export data in an image file, so the format in which the data was provided to the appellant would suggest that the data was exported in another format and then screenshots were compiled into a PDF file. The appellant submits that exporting the data into an Excel format directly from the FH software would have taken significantly less time, so the appellant rejects the city’s characterization of the effort required to provide the information in an Excel format as labour-intensive or onerous for it.

[33] The appellant submits that providing it with the records in one of the formats requested would not be akin to creating a new record. As noted, the appellant submits that the record is easily exported into the format specified when following simple directions as provided on the relevant software’s support website.

[34] For these reasons, [6] the appellant states that it disagrees with the city’s representations in their entirety, and submits that the city has not met its obligations under section  23  of the Act .

The city’s reply representations

[35] The city states that it and the Vaughan Fire and Rescue Service are in the best position to determine how to deploy resources, including staff, to process requests, not requesters. The city states that, while it appreciates the appellant’s suggestions, the appellant does not have the definitive picture of the state of the city’s resources and/or the feasibility of its staff to be redeployed.

[36] The city also states that the information the appellant needs is clearly visible in the record the city provided to the appellant. The city states that the issue is whether the appellant can use it in the exact way he chooses to; the city submits that this is beyond the limits of what the Act  contemplates, and reiterates that it has fulfilled its obligations to provide the information to the appellant.

[37] Finally, the city states that it hopes the IPC will consider how a potential order that “forces” an institution to “now contemplate” the use of information beyond an initial request will impact future freedom of information decisions and processes for all municipalities, not just the City of Vaughan. The city submits that institutions are already under tremendous strain with the onset of COVID-19 and the increase in freedom of information requests. The city submits that “adding usability to requirements” would further cripple institutions in being able to respond to requests within required timeframes. The city further submits that the implications of ordering institutions “to now” fulfill technological requirements would have far-reaching effects, especially on smaller municipalities if they do not currently have specific technology or staff expertise available at the time of a request.

The appellant’s sur-reply representations

[38] The appellant submits that the city did not provide any documentation to refute the appellant’s evidence. The appellant reiterates the claim that the information already exists in an Excel format and the city’s existing computer software program can extract the information in that format.

[39] The appellant also points to the following language from the Notice of Inquiry:

If a requester seeks access to a record in a format other than that in which the record exists, the institution is required to effect the change of format where it is reasonably practicable for it to do so.

[40] The appellant argues that, in this appeal, this is not a situation where the information that was requested needs to be changed into another format, but rather, that it should have been provided in the requested format from the outset. The appellant states that the request was very specific regarding which formats were being requested, and explicitly stated that a PDF format would not be acceptable; therefore, when the appellant initially received disclosure from the city, the appellant’s representative assumed it was simply a processing error. The format of the disclosure was an electronic graphic image record (JPEG within PDF) and not the electronic machine-readable record (such as Excel or csv) that was specified in the request.

[41] The appellant submits that several orders address matters regarding electronic records and the obligations on government institutions to remain openness and transparency, including Orders MO-2129, PO-3100, and MO-4116.

[42] In addition, the appellant relies on the Ontario Court of Appeal’s decision in Toronto Police Services Board v. (Ontario) Information and Privacy Commissioner, [7] which upheld IPC Order MO-1989 and which involved the issue of the proper construction of the term "record" in section 2(1)  of the Act . The appellant notes that the court said that what was at stake is the ability of the public to access electronically recorded information, under the control of a municipal government institution, in a format that would require the institution to develop a new algorithm to modify its existing computer software. In that decision, the court explored the purpose and intent of the Act  under section 1  of the Act , and found that it should be given broad interpretation to best ensure the achieving of its object and “true intent, meaning, and spirit.” [8] The court described this approach as one of presumptive access, reflecting the fact that because municipal institutions function to serve the public, they ought to generally be open to public scrutiny. The appellant also highlights the following from that Court of Appeal’s decision:

A contextual and purposive analysis of s.2(1) (b) must also take into account the prevalence of computers in our society and their use by government institutions as the primary means by which records are kept and information is stored. This technological reality tells against an interpretation of s.2(1) (b) that would minimize rather than maximize the public’s right of access to electronically recorded information. [9]

[43] The appellant notes that in the above decision, the Ontario Court of Appeal found that the institution had an obligation to develop a computer software program (by means of the technical expertise normally used by it) to produce the records requested from two separate electronic databases. The appellant notes that this is not even what is requested in this appeal. Rather, all that it has requested is that the information be provided in the specified record formats that were requested from the outset.

[44] The appellant argues that it comes down to reasonableness: the reasonable approach the city should have taken was to download the information using the relevant software into an Excel file and provide that information. The appellant states that they can only speculate as to why that was not done, and why instead, the city chose to download the information, take screenshots, and then compile the screenshots into PDF files – arguably a more labour-intensive and time-consuming process. The appellant argues that this process should have been avoided completely, and that the hours that have now been spent between the IPC, the city, the appellant and its local association, exponentially exceed what would have taken a few minutes to differentiate the file format when downloading the information from their software.

No supplementary representations from the city

[45] I invited the city to respond to the appellant’s sur-reply representations, but it declined to do so.

Analysis/findings

[46] For the reasons that follow, I find that the city must provide access to the appellant in one of the electronic formats requested.

[47] At the outset, I note that, in their representations, the parties raise several issues that are not within the scope of the appeal: the completeness or incompleteness of the information provided, the ability to view the information in person, the purpose of the request, and whether there is a public interest in the information being sought. However, the issue of public interest is not before me and is irrelevant to whether the city fulfilled its obligations under the Act . Likewise, the purpose for which the appellant is seeking the information is irrelevant in the circumstances. [10] There is also no reason to address the parties’ dispute about the ability to view the records in person or the completeness of the information provided to the appellant because I will be ordering the city to run the appropriate query or queries with the software named in the appellant’s representations, and which the city does not deny having.

[48] With respect to the city’s argument to the effect that it is not required to produce a record in a “useable” format, in my view, this argument is not relevant in the circumstances. The appellant made a request for a specific format and it is reasonably practicable for the city to produce it in that way, as I find below. No more need to be said about the “usability” of the record.

[49] As mentioned, the issue before me is whether it is reasonably practicable for the city to provide the responsive information in one of the formats requested by the appellant. I have also considered as a preliminary issue whether the requested formats are even a “record” within the meaning of the Act .

[50] As I noted above, a “record” includes a record that is capable of being produced from a machine-readable record. The IPC has recognized that creating a new record may be required in order to discharge an institution’s legal obligations under the Act  (see Orders P-50 and MO-2129). In Order MO-2129, the IPC addressed the obligations of an institution when dealing with a request for information that may not be in the format requested by an appellant:

... If the request is for information that currently exists in a recorded format different from the format asked for by the requester, . . . the [institution has] dual obligations.

First, if the requested information falls within paragraph (a) of the definition of a record (e.g., paper records), the [the institution] a duty to identify and advise the requester of the existence of these related records (i.e., the raw material). However, the [institution is] not required to create a record from these records that is in the format asked for by the requester (e.g., a list).

Second, if the requested information falls within paragraph (b) of the definition of a record, the [institution has] a duty to provide it in the requested format (e.g., a list) if it can be produced from an existing machine readable record (e.g., a database) by means of computer hardware and software or any other information storage equipment and technical expertise normally used by the institution, and doing so will not unreasonably interfere with the operations of the [institution]. In such circumstances, the [institution has] a duty to create a record in the format asked for by the requester.

In my view, a reasonable search for records responsive to an access request would include taking steps to comply with these two obligations. ...

[51] I agree with this reasoning, and adopt it here.

[52] To the extent that the city is arguing that the requested formats are not a “record” within the meaning of the Act , I find, that the requested format falls within paragraph (b) of the definition of a “record” because, firstly, it is capable of being produced from a machine readable record under the control of an institution by means of computer hardware and software or any other information storage equipment and technical expertise normally used by the institution. And secondly, because I find that producing it in one of these formats would not unreasonably interfere with the city’s operations.

[53] I am satisfied that the information that the appellant seeks can be produced in one of the formats requested, based on the appellant’s evidence that it can be obtained by running a query on software that the city already has.

[54] The city asserts that the information requested does not exist in any of the formats requested and asserts that manual entry into Excel would be required. The city further asserts that its Fire and Rescue Services staff would need to do this manual Excel data entry, without explaining why such staff would have to be tasked with what the city acknowledges is not something that requires highly specialized skills.

[55] Even more significantly, though, the city does not refute the appellant’s detailed evidence explaining which software is used and how this software provides publicly accessible step-by-step instructions on how to convert data into different formats through queries. I find the city’s bare assertions to be unpersuasive in the face of this uncontradicted evidence. The evidence before me leads me to conclude that providing the appellant with the records in one of the formats requested is possible without unreasonable interference in the city’s operations, given the undisputed evidence that it has software that allows for this. Moreover, given that same evidence, I find it would be reasonably practicable for the city to do so.

[56] I am satisfied on the evidence before me that providing the appellant with the records in one of the formats requested would not require any specialized equipment or skills. The relevant software to conduct the queries already exists, and the city has not claimed that its staff do not know how to use it.

[57] I agree with the Court of Appeal’s finding in Toronto Police Services Board v. (Ontario) Information and Privacy Commissioner [11] that the technological reality in which government institutions operate weighs against an interpretation of the definition of the term “record” at section 2(1)  of the Act  in a way that would minimize rather than maximize the public’s right of access to electronically recorded information. I also note that the IPC recently found, in Interim Order MO-4202-I, that an institution’s production of a PDF record when the appellant had asked for a machine-readable record was an unduly rigid reading of the request and that the PDF record was not even responsive to the request in the circumstances. Although the circumstances in the appeal before me are different in several ways from the appeal in Interim Order MO-4202-I, I highlight this interim order because it, too, illustrates that the provisions of the Act  should be interpreted so as to maximize rather than undermine access to electronic records.

[58] In my view, it would not interfere with the city’s operations to produce the records in one of the formats requested by the appellant, and moreover it is reasonably practicable for it to do so. The city’s position is that it cannot afford to spend additional resources on a request it already fulfilled, that its resources are already stretched thin, and that it would be incredibly time-consuming to provide the record in a format requested. I do not accept the premise of this position, that the city already fulfilled the request (that being the very issue I am deciding in this appeal). Nor do I accept that it would be a labour-intensive, time-consuming task to fulfill the request, in the face of the detailed and compelling undisputed evidence put forward by the appellant about the software involved and its functionality.

[59] Moreover, given the evidence before me about the city’s software and its functionality, I am satisfied that it would be reasonably practicable for it to produce the record in one of the specified formats.

[60] As for the expenditure of further resources to provide the appellant with the information in one of the requested formats, the Act  and corresponding Regulation contain provisions to charge fees for processing a request. The city has already charged the appellant fees. The basis of that fee is not before me. The city may wish to consider whether it is entitled to rely on the fee provisions of the Act  and Regulation to provide the appellant with the information in a format requested. [12]

[61] For these reasons, I find that it is reasonably practicable for the city to provide the appellant with access to the information in one of the formats requested, under section 23  of the Act . Therefore, I will order the city to provide the appellant with the information in one of the formats requested.

ORDER:

1. I allow the appeal. It is reasonably practicable for the city to provide access to the responsive information in one of the formats requested by the appellant.
2. The city is ordered to provide the information requested to the appellant in one of the formats requested by October 17, 2022, or to provide the appellant with a fee estimate in accordance with the procedural requirements of the Act .

Original Signed by:		September 15, 2022
Marian Sami
Adjudicator