ORDER MO-3268

Appeal MA14-448

Toronto Police Services Board

December 3, 2015

Summary: The issues in this appeal are whether the Toronto Police Services Board (the police) conducted a reasonable search for records that are responsive to the request, and whether they are obliged to create a record under section 17  of the Municipal Freedom   of Information and Protection of Privacy Act . The appellant’s position is that the police did not conduct a reasonable search for a transcript of a 911 call, and that they are obliged to create a transcript of the call. In this order, the adjudicator upholds the police’s search as being reasonable, and finds that they are not obliged to create a record in the circumstances of this request.

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

OVERVIEW:

[1]  The Toronto Police Services Board (the police) received an access request under the Municipal Freedom of Information and Protection of Privacy Act  (the Act ) regarding an identified 911 call. The requester was seeking a voice recording and a “written certified forensic transcription” of the 911 call.

[2]  The police issued a decision to the requester granting partial access to an Intergraph Computer Aided Dispatch – 911 Call (I/CAD) printout. The police denied access to portions of this record, claiming the application of the discretionary exemption in section 38(b) (personal privacy) of the Act . The police also noted that some of the information in the record was withheld, as it was identified as non-responsive to the request.

[3]  The requester (now the appellant) appealed the police’s decision to this office.

[4]  During the mediation of the appeal, the appellant advised the mediator that he was not seeking access to any further information in the I/CAD printout. Therefore, the application of the exemption in section 38 (b) of the Act , as well as the non-responsive portions of the record, are no longer at issue.

[5]  The appellant also advised the mediator that while he already has a copy of the audio recording of the 911 call, [1] he seeks access to an official transcript of the call, raising the issues of the reasonableness of the police’s search, and whether the police are obliged to create a record. The police advised the mediator that they do not have a transcript of the record, and are not obliged to create a record under the Act .

[6]  The appeal then moved to the adjudication stage of the appeals process, where an adjudicator conducts an inquiry. I sought and received representations from the police. I attempted to seek representations from the appellant but was unable to locate him. [2] Consequently, the appellant did not provide representations in this appeal.

[7]  For the reasons that follow, I uphold the police’s search as being reasonable, I also find that the police are not obliged to create a record in these circumstances, and I dismiss the appeal.

ISSUES:

1. Did the institution conduct a reasonable search for records?
2. Are the police obliged to create a record?

DISCUSSION:

Issue A: Did the institution conduct a reasonable search for records?

[8]  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. [3] 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.

[9]  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. [4] 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. [5]

[10]  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. [6]

[11]  The police state that when they received the appellant’s access request, the analyst processing the request contacted the Detective in charge of the case, who advised that a transcription of the 911 call was not done by, or on behalf of, the police. They go on to state that the appellant created a transcript from the call, which was submitted in court.

[12]  I am satisfied that the police’s representations demonstrate that they made a reasonable effort to address the appellant’s request and provided an explanation as to why they do not have a copy of a transcript of the 911 call. The appellant has identified what he believes is the record at issue; namely a transcript of the 911 call. However, the appellant must provide a reasonable basis for concluding that such a record exists. In my view, the appellant has not provided a reasonable basis for concluding that the police have a copy of a transcript of the 911 call. Accordingly, I am satisfied that the police’s response to the appellant's request, as well as their search for responsive records, is in compliance with their obligations under the Act .

Issue B: Are the police obliged to create a record?

[13]  The appellant is of the view that the police have an obligation to create a transcript of the 911 call. It has been established and recognized in previous orders that section 17  of the Act  does not, as a rule, oblige an institution to create a record where one does not currently exist. [7] However, in Order 99, former Commissioner Sidney Linden made the following observation with respect to the obligations of an institution to create a record from existing information which exists in some other form:

While it is generally correct that institutions are not obliged to “create” a record in response to a request, and a requester’s right under the Act  is to information contained in a record existing at the time of his request, in my view the creation of a record in some circumstances is not only consistent with the spirit of the Act , it also enhances one of the major purposes of the Act  i.e., to provide a right of access to information under the control of institutions.

[14]  The police submit that in this context, the statements made by former Commissioner Linden are not applicable. The police state:

The Police mandate is not to review all 911 tapes and provide transcribed records, unless requested by a Crown Attorney for court purposes. For private individuals/organizations – the request for transcription can be accommodated via contacting the appropriate courthouse and/or through private agencies.

[15]  Moreover, the police state that they advised the appellant that transcription services are available for hire.

[16]  The appellant’s position is that the police have an obligation to create a written transcript of the 911 call. I find that the police are not required to do so in the circumstances and that they have met their obligations under the Act . As identified above, an institution is not, as a rule, obliged to create a record where one does not currently exist, and I find that the circumstances present in this appeal are not such as to warrant the creation of a record. In my view, this is not the type of situation described by former Commissioner Linden in Order 99. In the absence of representations from the appellant, I find that the present circumstances are not such that the police are obliged to create a record containing the requested information.

ORDER:

1. I uphold the police’s search as being reasonable, and I find that the police are not obliged to create a record in these circumstances.
2. I dismiss the appeal.

Original Signed by:		December 3, 2015
Cathy Hamilton
Adjudicator