Access to Information Orders
Decision Information
NATURE OF THE APPEAL: This is an appeal under the Freedom of Information and Protection of Privacy Act (the Act ) arising from a decision of the Ministry of Training, Colleges and Universities (the Ministry). This matter has a fairly long and complex history; however, for the purpose of this order, it is not necessary to review in detail the history of the previous appeals. This specific appeal arose from a revised decision letter issued by the Ministry in response to a request for 13 particular records relating to the following request: … all documents, notes memoranda, etc. which are or have been in the possession of the Ministry relating to the development of Bill 88 2001, also known as " An Act to revise the Ontario College of Art Act 1968-69 ". The Ministry's revised decision was to grant partial access to 13 responsive records (approximately 90 pages), and to deny access to the severed portions of the records on the basis of a number of identified exemptions. The requester (now the appellant) appealed the Ministry's revised decision, and this appeal file was opened. During the mediation stage of the appeal, all but two issues were resolved between the parties. One remaining issue is whether an identified three-page record qualifies for exemption under section 12 (cabinet records) of the Act . The other issue is whether certain identified records exist. Mediation did not resolve these two issues, and this appeal was transferred to the adjudication stage of the process. I sent a Notice of Inquiry to the Ministry, initially, asking for representations on these issues. The Ministry provided representations on both issues, and I then sent the Notice of Inquiry, together with the non-confidential portions of the Ministry's representations, to the appellant. The appellant responded with representations which I provided to the Ministry and the Ministry provided reply representations. I then shared the non-confidential portions of the Ministry's representations with the appellant, who provided representations by way of surreply. RECORD: The record remaining at issue is a three-page document entitled "Comments re: OCAD [Ontario College of Art and Design] Draft Act". DISCUSSION: CABINET RECORDS The Ministry takes the position that section 12(1) applies to the record at issue. In its representations, the Ministry identifies that it is relying on the introductory wording to section 12(1), as well as section 12(1)(f), to deny access to the record. These sections read: (1) A head shall refuse to disclose a record where the disclosure would reveal the substance of deliberations of the Executive Council or its committees, including, (f) draft legislation or regulations. Previous decisions of this Office have established that the use of the word "including" in the introductory language of section 12(1) means that any record which would reveal the substance of deliberations of Cabinet or its committees (not just the types of records enumerated in the various subparagraphs of 12(1)), qualifies for exemption under section 12(1) [See Orders P-22, P-331, P-894, P-1570]. It is also possible for a record that has never been placed before Cabinet or its committees to qualify for exemption under the introductory wording of section 12(1), if an institution can establish that disclosing the record would reveal the substance of deliberations of Cabinet or its committees, or that its release would permit the drawing of accurate inferences with respect to these deliberations [See Orders P-361, P-604, P-901, P-1678, PO-1725]. The Ministry submits: The record at issue in this appeal is an attachment to the email identified in the Appendix … It contains comments on the [Ontario College of Art and Design] draft legislation, which were reviewed by Senior Legal Counsel in the Ministry's Legal Services Branch and two policy advisors in the Universities Branch. The Ministry withheld this attachment under section 12 of the Act … The comments in the record at issue refer to specific sections of draft legislation…. Since the comments in the record at issue bear directly on passages in the draft legislation, disclosure of this record would certainly permit the drawing of accurate inferences with respect to the deliberations of Cabinet and its committee. Also, it would disclose aspects of draft legislation. In the confidential portions of its representations the Ministry then identifies the specific deliberations of Cabinet or its committees which it maintains would be revealed if the record at issue were to be disclosed. The appellant notes in his representations that whether section 12 applies will depend on whose comments are contained in the document. He also takes the position that simply because comments are reviewed by Counsel, or that Counsel is aware of them, does not necessarily mean that the records qualify for exemption under section 12. In this case, the Ministry takes the position that the record at issue would reveal the substance of the draft legislation, which was the subject of deliberations and decisions by Cabinet and its committees. The Ministry also specifically identifies the deliberations of Cabinet or its committees which would be revealed. Based on my review of the record at issue and the Ministry's representations, I am satisfied that disclosure of the record would reveal the substance of deliberations of Cabinet or its committees, or would permit the drawing of accurate inferences with respect to the substance of deliberations of Cabinet or its committees. Accordingly, the record is subject to the mandatory exemption from disclosure established by the introductory language of section 12(1). REASONABLE SEARCH Introduction In appeals involving a claim that additional responsive records exist, as is the case in this appeal, the issue to be decided is whether the Ministry has conducted a reasonable search for the records as required by section 24 of the Act . If I am satisfied that the search carried out was reasonable in the circumstances, the decision of the Ministry will be upheld. If I am not satisfied, further searches may be ordered. A number of previous orders have identified the requirements in reasonable search appeals (see Orders M-282, P-458, P-535, M-909, PO-1744 and PO-1920). In Order PO-1744, acting-Adjudicator Mumtaz Jiwan made the following statement with respect to the requirements of reasonable search appeals: … the Act does not require the Ministry to prove with absolute certainty that records do not exist. The Ministry must, however, provide me with sufficient evidence to show that it has made a reasonable effort to identify and locate responsive records. A reasonable search is one in which an experienced employee expends a reasonable effort to locate records which are reasonably related to the request (Order M-909). I agree with acting-Adjudicator Jiwan's statement. Where a requester provides sufficient detail about the records that he/she is seeking and the institution indicates that records or further records do not exist, it is my responsibility to ensure that the institution has made a reasonable search to identify any records that are responsive to the request. The Act does not require the institution to prove with absolute certainty that records or further records do not exist. However, in my
Decision Content
NATURE OF THE APPEAL:
This is an appeal under the Freedom of Information and Protection of Privacy Act (the Act) arising from a decision of the Ministry of Training, Colleges and Universities (the Ministry). This matter has a fairly long and complex history; however, for the purpose of this order, it is not necessary to review in detail the history of the previous appeals.
This specific appeal arose from a revised decision letter issued by the Ministry in response to a request for 13 particular records relating to the following request:
… all documents, notes memoranda, etc. which are or have been in the possession of the Ministry relating to the development of Bill 88 2001, also known as “An Act to revise the Ontario College of Art Act 1968-69”.
The Ministry’s revised decision was to grant partial access to 13 responsive records (approximately 90 pages), and to deny access to the severed portions of the records on the basis of a number of identified exemptions.
The requester (now the appellant) appealed the Ministry’s revised decision, and this appeal file was opened.
During the mediation stage of the appeal, all but two issues were resolved between the parties. One remaining issue is whether an identified three-page record qualifies for exemption under section 12 (cabinet records) of the Act. The other issue is whether certain identified records exist.
Mediation did not resolve these two issues, and this appeal was transferred to the adjudication stage of the process. I sent a Notice of Inquiry to the Ministry, initially, asking for representations on these issues. The Ministry provided representations on both issues, and I then sent the Notice of Inquiry, together with the non-confidential portions of the Ministry’s representations, to the appellant. The appellant responded with representations which I provided to the Ministry and the Ministry provided reply representations. I then shared the non-confidential portions of the Ministry’s representations with the appellant, who provided representations by way of surreply.
RECORD:
The record remaining at issue is a three-page document entitled “Comments re: OCAD [Ontario College of Art and Design] Draft Act”.