Following the issuance of the third decision, Appeal MA-010012-2 was closed. 

The current appeals

Mediation did not resolve this appeal, and it proceeded to the inquiry stage of the process.  This office sent a Notice of Inquiry to MPAC, initially, and MPAC provided representations in response.  This office then sent the Notice of Inquiry, along with a copy of MPAC’s representations, to the appellant.  The appellant also provided representations on the issues. 

One of the issues in this appeal involves access to the property sales information, and whether the exemptions in sections 14 or 15 apply to that information.  These issues were identified as similar to issues which were the subject of other appeals, as well as an application to the courts.  Accordingly, this file was placed on hold pending the outcome of some of these other issues. 

However, I decided to address the issue of the scope of the appellant’s request as a preliminary matter.  I issued Interim Order MO-1712-I, in which I found that the model that was used to obtain the assessed value of the subject properties was responsive to the request and had not been removed from the scope of the request.  I therefore ordered MPAC to provide the appellant with a decision letter regarding access to the model that was used to obtain the assessed value of the subject properties, in accordance with the requirements of the Act.

In compliance with Order MO-1712-I, MPAC issued a decision on access to the models it identified as responsive to the request, denying access to those records on the basis of the exemption found in section 15(a) of the Act.  The appellant appealed that decision, and as a result appeal MA-010012-4 was opened.  Access to the models was therefore no longer an issue in appeal MA-010012-3.

The issues remaining in MA-010012-3 involve access to the sales property information relating to 1,929 properties found on the “SAE Screens”, and whether sections 14 or 15 apply to that information.  As identified, this file was placed “on hold” pending the outcome of other matters.  On May 21, 2004, the Divisional Court of Ontario issued a decision on a judicial review of Order MO-1693, a decision of this office in which Assistant Commissioner Mitchinson determined that sections 14 and 15 of the Act did not apply to certain assessment roll records (Municipal Property Assessment Corporation v. Tom Mitchinson, Assistant Information and Privacy Commissioner and Security Recovery Group Inc., Tor. Doc 647/03).  The Divisional Court decided that sections 14 and 15 did apply to the assessment roll information at issue in that appeal, and upheld MPAC’s decision to deny access.

Following the issuance of the Divisional Court’s decision, I provided a copy of that decision to the appellant, inviting the appellant to address the possible impact of that decision on the issues raised in this appeal.  The appellant provided representations in response.

The appellant’s response identified that section 14 was not an issue in this appeal, as the appellant was not seeking personal information.  The appellant also identified that the possible application of section 15(a) remained an issue in this appeal, and that he was also of the view that issues remained regarding the scope of this appeal.

MA-010012-4

As identified above, in response to Interim Order MO-1712-I, MPAC issued a decision letter to the appellant, advising that access to the model was denied pursuant to sections 11(a), 11(c), 11(d) and 15(a) of the Act.  MPAC noted that portions of the model are available through its regularized system of access known as the Guidelines for the Release of Assessment Data (GRAD), and also referred to a product known as the Residential Valuation Overview.

The appellant appealed MPAC’s decision, and appeal MA-010012-4 was opened.

During the mediation stage of the appeal, MPAC issued a revised decision identifying that it was no longer relying upon sections 11(a), (c) and (d) of the Act.  However, that decision also identified that access to the model continued to be denied pursuant to section 15(a) of the Act, and that section 15(a) applies to the complete document and not just selected portions.  MPAC also noted that the model is available through the GRAD program, and MPAC provided this office with a copy of a document which it identified as the model responsive to the request.

Also during mediation, the appellant questioned whether the record identified by MPAC is actually the responsive model.  In particular, the appellant identified that a previous order (Order MO-1564) dealt with information contained in an assessment “model” which seems to include certain other information.  In addition, the appellant identified that his request was for the model used to calculate both the 1996 and 1999 valuations.

In discussions with the mediator, MPAC confirmed that the document provided to this office is the only model responsive to the request, and includes all of the information that the appellant requested regarding the model that was used to obtain the assessed value of the subject properties.  MPAC also advised that the model could be obtained through the GRAD program for a fee of approximately $900.00.  Finally, MPAC identified that it continues to rely on section 15(a) to deny access to this record.

Mediation did not resolve this appeal, and it was transferred to the inquiry stage of the process.  I sent a Notice of Inquiry to MPAC, initially.  MPAC provided representations in response to the Notice of Inquiry.

In its representations, MPAC addresses a number of the questions raised in the Notice of Inquiry.  MPAC also identified that, in the course of preparing its representations, an electronically archived copy of the “model used to calculate the 1999 valuation” was located.  MPAC identifies in its representations that it is claiming that this record also qualifies for exemption under section 15(a) of the Act.

Upon receipt of MPAC’s representations, I sent the Notice of Inquiry, along with a copy of MPAC’s representations, to the appellant, who provided representations in response.

DISCUSSION:

Responsiveness of the Records/Scope of the request

The issue of the scope of the request and whether the identified records are responsive is raised in both of the current appeals.

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; and

...

(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).

To be considered responsive to a request, records must “reasonably relate” to the request [Order P-880].

MA-010012-3

MPAC identifies that the record at issue in this appeal is the “Sales Enquiry Screen” or “SAE Screen” which is downloaded from the OASYS database, relating to the 1,929 sales used to determine the value of the subject properties.

The appellant disputes MPAC’s position that the 1,929 properties identified by MPAC “were used to determine the value of [the appellant’s] properties”.  He takes the position that MPAC has no way of determining which of the 1,929 sales actually relate to his properties, and that fewer properties were used to assess his properties.  In support of his position, he refers to verbal discussions he had with the previous Freedom of Information Co-ordinator. 

The appellant also refers to the following quotation from Order PO-1655, in which similar issues regarding the proper characterization of “comparable properties” were addressed:

The Ministry indicates that part 12 of the request was for sales data relevant to the assessment of the requester’s property and five comparables.  The Ministry indicates that there were 2,476 sales used in the analysis to develop the rates for use on all properties such as the appellant’s.  The Ministry explains further that there is no way of determining which of the 2,476 relate specifically to the appellant’s property or the five comparables.  In an interesting turn, the Ministry submits that it believes it could have made the decision that no records exist which would be responsive to the appellant’s request, and leaves it open to me to make such a finding…

On the basis of the above, the appellant takes the position that, although MPAC has not claimed that it has no way of determining which of the 1,929 sales actually relate to the appellant’s property, MPAC was aware that the records might not be responsive to the request.  The appellant states that the real issue is how to identify the specific properties which are genuinely responsive to the request.   In addition, the appellant identifies that MPAC should have clarified the request with the appellant pursuant to section 17(2) of the Act.

Findings

As referenced above, I addressed the scope of this appeal in Interim Order MO-1712-I.  In my decision I stated as follows:

In the circumstances of this appeal, there were three decision letters issued by MPAC over a period of six months from the initial request.  It is apparent that there was considerable confusion, not only on the appellant’s part, but also on the part of the Co-ordinator and MPAC’s staff, as to what the request was about and to what the records referred.  Indeed, following the conversation referred to by the Co-ordinator, and MPAC’s second decision letter, MPAC issued a third decision explaining that the records identified in the second decision letter as being responsive to the appellant’s request were incorrectly identified.

I went on to find that there was not a clear meeting of the minds on the issue of whether the appellant narrowed the scope of his request to exclude the model, and that the model was responsive to the request.

I reiterate that there was considerable confusion on the part of all of the parties, particularly during the previous appeals and the early stage of this appeal, as to what records were responsive to the request.  However, I do not agree with the position put forward by the appellant that the records at issue are not responsive. 

The appellant refers to the quotation from Order PO-1655 in support of his view that MPAC should have worked with the appellant in narrowing the responsive records; however, Adjudicator Cropley goes on to state in that order:

I am satisfied, as the Ministry explains, that there is no way to specifically determine which of the 2,476 properties relate specifically to the appellant’s property and the five comparables.

In the circumstances of this appeal, which are analogous to the situation in PO-1655, I am satisfied that the 1,929 sales properties are responsive to the request, and were used in some way to develop the rates in the models used to produce the valuations of the subject properties.  The appellant would prefer that the number of responsive sales properties be reduced, and suggests that a review of the “models” responsive to MA-010012-4 might assist in doing so.  In light of my findings concerning access to the models set out below, it may be that the appellant will pursue this course of action in the future; however, in this appeal I am satisfied that the 1,929 sales properties identified by MPAC are responsive to the request.

MA-010012-4

As identified above, the decision resulting in appeal MA-010012-4 arose from my Order MO-1712-I, in which I ordered MPAC to provide the appellant with a decision letter regarding access to the model that was used to obtain the assessed value of the subject properties, in accordance with the requirements of the Act.

MPAC identified the document entitled “City of Toronto: 1996 Current Value Assessment.  Volume III – Commercial and Industrial Properties” dated July 1998, as the record responsive to the request.

During mediation, the appellant questioned whether the record identified by MPAC was actually the responsive model.  In particular, the appellant identified that a previous order (Order MO-1564) dealt with information contained in an assessment “model” which seems to include other information.  The appellant also identified that his request was for the model used to calculate the 1996 and 1999 valuations.

During mediation, MPAC confirmed that the document provided to this office was the only model responsive to the request, and includes all of the information that the appellant requested regarding the model that was used to obtain the assessed value of the subject properties. 

Subsequently, in its representations, MPAC identified that, in the course of preparing its representations, an electronically archived copy of the “model used to calculate the 1999 valuation” was located.  That record is now also a record at issue in this appeal.

The appellant provided representations on the scope of the request.  The appellant identifies the difficulty in determining whether the identified records comprise the whole “model” without being able to view the records.  He indicates that records such as those described as “Record 2” in Order MO-1564, which explain the variables used in a model, may be responsive.

The appellant also states:

If … the requester is given access to the documents, we suggest that in addition to the records submitted by MPAC the order include those records similar to those ordered to be produced in Order MO-1564 for each of the 1996 and 1999 models, unless such information is already incorporated into the [responsive records].

Findings

I have reviewed the two records at issue in this appeal (the 1996 and 1999 models) and, in my view, these records are the records responsive to the appellant’s request for the “model that was used to obtain the assessed value of the subject properties”.  The records were used to calculate the 1996 and 1999 valuations, respectively.

Furthermore, I have reviewed Order MO-1564, referred to by the appellant.  In that appeal, the request was clearly for a variety of additional information including the regression equation used to determine the assessed value for a specific property, a complete listing of the independent (explanatory) variables used in the property equation, and the coefficients attached to each variable in the final equation.  I also note that, although that appeal dealt with a number of responsive records, none of those records were comprehensive models such as the two records at issue in this appeal.

Unlike that appeal, the decision resulting in this appeal was in response to a request for the model that was used to obtain the assessed value of the subject properties.  I am satisfied that the two identified records are responsive to the appellant’s request for the model.  However, in the circumstances, it may be that additional records (such as, for example, a list of the variables used in the model) may assist or be required to interpret the model.  Notwithstanding this possibility, I have decided in the circumstances to issue this order based on the two records provided by MPAC which are clearly the primary responsive records.  In my view, reaching some degree of clarity through this order is preferable to delaying the matter further while the parties continue to try to sort out whether other records may be responsive.  I will be ordering the disclosure of certain records in this appeal.  If, after reviewing these records, the parties are in a position to identify the existence of additional records to assist them, the appellant will be entitled to pursue a further request and/or appeal at that time.

RECORDS:

MA-010012-3

MA-010012-4

The records at issue are:

-          a document entitled “City of Toronto: 1996 Current Value Assessment.  Volume III – Commercial and Industrial Properties”, dated July 1998 (approximately 165 pages); and

-          an electronically archived copy of the “model used to calculate the 1999 valuation”. 

SECTION 15(a):  INFORMATION CURRENTLY AVAILABLE TO THE PUBLIC

MPAC has taken the position that the information contained in the 1,929 “SAE Screens” at issue in appeal MA-010012-3, and the two identified records at issue in appeal MA-010012-4, are exempt from disclosure under section 15(a) of the Act.  That section states:

the record or the information contained in the record has been published or is currently available to the public;

For this section to apply, MPAC must establish that the record is available to the public generally, through a regularized system of access, such as a public library or a government publications centre [Orders P-327, P-1387].

To show that a “regularized system of access” exists, the institution must demonstrate that

•                     a system exists

•                     there is a pricing structure that is applied to all who wish to obtain the information

[Order P-1316]

Examples of the types of records and circumstances that have been found to qualify as a “regularized system of access” include

•                     unreported court decisions [Order P-159]

•                     statutes and regulations [Orders P-170, P-1387]

•                     property assessment rolls [Order P-1316]

•                     septic records [Order MO-1411]

•                     property sale data [Order PO-1655]

The exemption may apply despite the fact that the alternative source includes a fee system that is different from the fees structure under the Act [Orders P-159, PO-1655, MO-1411, MO-1573].  However, the cost of accessing a record outside the Act may be so prohibitive that it amounts to an effective denial of access, in which case the exemption would not apply [Order MO-1573].

MA-010012-3: the property sales data for comparable properties

With respect to the property sales data for comparable properties, MPAC has taken the position that they are exempt from disclosure under section 15(a) of the Act.

MPAC states:

MPAC’s Business Development Group established and maintains a process that allows individuals to purchase property information by way of custom orders. 

MPAC has an established pricing schedule that is used and applied for all requests for property information from members of the public.  

MPAC has also provided an affidavit in support of its position that the property information requested is subject to the pricing schedule.

In addition, MPAC refers to previous orders of this office in support of its position that the sales data is “available to the public”.  It refers to Order PO-1655, in which Adjudicator Cropley found as follows concerning whether the sales data requested qualified for exemption under the provincial equivalent of section 15(a):

As in Order P-1316, the system of access which the Ministry has established for sales data in electronic and paper format has not been formalized by statute or regulation.  However, I am satisfied that the Ministry has developed a policy for the purpose of making available sales data relating to properties through a regularized system of access at an established fee which is consistently applied to all requesters.  Accordingly, I find that the Ministry has established that the information contained in the record is “published or available to the public” and [qualifies for exemption].

The appellant’s representations focus on his position that the number of sales identified by MPAC as responsive to the request is too great.  I addressed this issue earlier in this order.

The appellant also states that section 15(a) cannot apply, as MPAC did not advise the appellant of the existence of a “regularized system of access” until the appellant was “well into the Freedom of Information request”.  He also states that MPAC should be required to show that such access is actually given to the public, under a pre-existing publicly recognized formula.  In addition, he identifies the process which he believes should be in place for any individual requesting access to sales data, and the steps that MPAC should take in assisting requesters interested in accessing the requested sales information.

As set out above, I also invited the appellant to address the possible impact of the Divisional Court decision in Municipal Property Assessment Corporation v. Tom Mitchinson, in which the Divisional Court decided that section 15 did apply to certain assessment roll information.  The appellant takes the position that that decision can be distinguished from the issues in this appeal based on a number of factors, including the specific privacy concerns identified by the Divisional Court in that decision, and the nature of the records at issue.

Findings

In my view the information contained on the “SAE Screens” relating to the 1,929 sales property sales, which is downloaded from the OASYS database, qualifies for exemption under section 15(a) of the Act.  I am satisfied that MPAC has provided sufficient evidence to establish that this information is available to the public through a regularized system of access at an established fee which is consistently applied to all requesters.  In addition, this finding is consistent with previous orders which have found this type of information to qualify for exemption under section 15(a) (See, for example, Order PO-1655).

Accordingly, the records at issue in MA-010012-3 qualify for exemption under section 15(a) of the Act.

MA-010012-4: The two models

With respect to the models at issue in MA-010012-4, MPAC has taken the position that these records are also exempt from disclosure under section 15(a) of the Act.

MPAC takes the position that this record is currently available to the public.  It states that the record became available to the public “about the same time that the record was made available to the City of Toronto’s Tax Policy Task Force … estimated to be sometime in July of 1998”.

MPAC also confirms that the “regularized system of access” has changed over time.  It states:

When the record at issue was first promulgated MPAC was integral to the Ministry of Finance and known as the Property Assessment Division (PAD).  At that time the PAD’s information sharing/availability practices were significantly different than they are today.  On January 1, 1999 PAD separated from the Ministry of Finance and became a non-share capital, not-for-profit corporation known as the Ontario Property Assessment Corporation, currently named the Municipal Property Assessment Corporation.  MPAC as a private corporation adopted a different attitude toward its information holdings than did the Ministry of Finance.

With respect to whether the record is currently available to the public, MPAC acknowledges that the copy of the record provided to this office in the course of this appeal is, to the best of its knowledge, the only remaining copy of the record.  In order to fulfill the appellant’s request for the record, MPAC would have to photocopy the sole remaining record and provide it to the appellant.  Notwithstanding that the record provided to this office is the sole known remaining copy, MPAC maintains that the record was and continues to be available to the public under a “regularized system of access”.  MPAC identifies that, according to the recollection of knowledgeable staff, shortly after the record became available to the public in 1998, approximately six copies of the record, either in whole or in part, were sold to the public. 

MPAC identifies that since that time, which is a period of approximately six years, no further requests for the record have been received.  MPAC also states:

Although the record is, in MPAC’s opinion, of no current value to a purchaser, it continues to be for sale, simply by virtue of the fact that MPAC has a single copy in its library capable of being photocopied.

In support of its position that section 15(a) applies to this record, MPAC also identifies that its representations should be read in conjunction with its previously submitted representations.  I have had reference to the representations provided by MPAC on the application of section 15(a) in MA-010012-3; however, representations were not made on the possible application of the section 15(a) exemption to the model.

I have carefully reviewed MPAC’s representations in support of its position that section 15(a) applies to the 1996 model.  As set out above, in order to qualify for exemption under this section, MPAC must establish that the record is available to the public generally, through a regularized system of access.  Furthermore, to show that a “regularized system of access” exists, the institution must demonstrate that a system exists, that the record is available to everyone, and that there is a pricing structure that is applied to all who wish to obtain the information.

Based on the representations provided by MPAC, I am not satisfied that I have been provided with sufficient evidence to support a finding that the record qualifies for exemption under section 15(a) of the Act.  MPAC identifies that access to record has changed over time, and has also referred to the recollection of knowledgeable staff concerning the sale of this record approximately six years ago.  MPAC also confirms that the sole remaining copy of the record is the one provided to this office in this appeal, and that this record would need to be photocopied to enable MPAC to provide a copy to the appellant. 

Although it may be that a regularized system of access existed in the past, it is not clear to me on the basis of the representations what that regularized system of access was, nor what pricing structure applied and how it was applied.  Even if I had been provided with sufficient evidence of the existence of a regularized system of access in the past, I am not satisfied that such a system currently exists. 

Accordingly, I find that section 15(a) does not apply to the document entitled “City of Toronto: 1996 Current Value Assessment.  Volume III – Commercial and Industrial Properties”.

As identified above, the 1999 model was located by MPAC staff during the preparation of the representations in this appeal.  MPAC stated:

During the preparation of these representations, MPAC staff were fortunate to have located an electronically archived copy of the model used to calculate the 1999 valuation. … It is also subject to section 15(a) of the Act.

MPAC does not provide any specific representations on the application of section 15(a) to the 1999 model.  In the absence of representations supporting its position that this record qualifies for exemption under section 15(a), I find that section 15(a) does not apply to this record. 

ORDER:

1.                  I uphold MPAC’s decision that the 1,929 “SAE Screens” for the sales of the 1,929 properties used to determine the value of the subject properties, at issue in MA-010012-3, qualify for exemption under section 15(a) of the Act.

2.                  I order MPAC to disclose the two models responsive to the request in appeal              MA-10012-4 to the appellant by January 7, 2005.

3.                  In order to verify compliance with Provision 2 of this order, I reserve the right to require MPAC to provide me with a copy of the records it discloses to the appellant, upon request.

Original Signed by:                                                                               December 13, 2004                                    

Frank DeVries