ORDER PO-4644

Appeal PA23-00198

Cabinet Office

April 23, 2025

Summary: An individual requested access under the Freedom of Information and Protection of Privacy Act  from Cabinet Office to records of directives from the Premier’s Office to the Ministry of Municipal Affairs and Housing regarding the removal of lands from the Greenbelt. Cabinet Office located two responsive records: a mandate letter and a draft mandate letter.

The individual appealed Cabinet Office’s decision because he believes additional responsive records ought to exist.

In this order, the adjudicator finds Cabinet Office conducted a reasonable search for records and dismisses the appeal.

Statutes Considered: Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. F.31, section 24 .

Orders Considered: Interim Order PO-4611-I, Orders M-909, and PO-4638.

Reports Considered: Special Report on Changes to the Greenbelt, Office of the Auditor General, August 2023; Report of the Integrity Commissioner re: Minister of Municipal Affairs and Housing, August 2023; Standing Committee on Public Accounts’ Consideration of the Special Report on Changes to the Greenbelt, May 6, 2024.

OVERVIEW:

[1] The appellant made a request under the Freedom of Information and Protection of Privacy Act  (the Act ) to Cabinet Office for “all directives sent by any official in the Premier’s Office to any [Ministry of Municipal Affairs and Housing (the ministry)] official concerning the removal of lands from the Greenbelt, including directives sent by email, memo, text message, hard copy or other media.” The appellant identified the period of June 2, 2022 to November 4, 2022.

[2] The Premier’s Office is the political centre of government. Cabinet Office is, in essence, the Premier’s ministry, providing the Premier and his Cabinet with advice and analysis to assist the government in achieving its priorities.

[3] The appellant’s request relates to the Ontario government’s decision to remove and develop lands from the Greenbelt. The government announced this plan on November 4, 2022 and subsequently reversed it. The decision-making process for the selection of land for removal from the Greenbelt has been the subject of two reports by independent officers of the Legislative Assembly of Ontario: a report of the Auditor  General of Ontario[1] and a report of the Office of the Integrity Commissioner of Ontario.[2]

[4] Cabinet Office conducted a search and issued a decision advising the appellant it could not locate any responsive records.

[5] The appellant appealed Cabinet Office’s decision to the Information and Privacy Commissioner of Ontario (the IPC).

[6] During mediation, Cabinet Office conducted an additional search and located two records, a mandate letter and a draft mandate letter. The appellant advised he did not seek access to these records. The appellant claimed additional responsive records ought to exist and Cabinet Office did not conduct a reasonable search for responsive records.

[7] As a mediated resolution was not reached, the appeal was transferred to the adjudication stage of the appeals process, where an adjudicator may conduct an inquiry. I sought and received representations from the appellant and Cabinet Office.[3]

[8] In the discussion that follows, I find Cabinet Office conducted a reasonable search for records and dismiss the appeal.

DISCUSSION:

[9] The sole issue to be decided is whether Cabinet Office conducted a reasonable search for records of directives sent by any official in the Premier’s Office to any official at the ministry concerning the removal of lands from the Greenbelt.

[10] If a requester claims additional records exist beyond those located by the institution, the issue is whether the institution conducted a reasonable search for records as required by section 24  of the Act .[4] If the IPC is satisfied the search carried out was reasonable in the circumstances, it will uphold the institution’s decision. Otherwise, it may order the institution to conduct another search for records.

[11] Although a requester will rarely be able to indicate precisely which records the institution has not identified, they must still provide a reasonable basis for concluding that such records exist.[5]

[12] The Act  does not require the institution to prove with certainty that further records do not exist. However, the institution must provide sufficient evidence to show it made a reasonable effort to identify and locate responsive records.[6] Responsive records are records that are “reasonably related” to the request.[7]

[13] A reasonable search is one in which an experienced employee knowledgeable in the subject matter of the request makes a reasonable effort to locate records that are reasonably related to the request.[8] The IPC will order a further search if the institution does not provide enough evidence to show it made a reasonable effort to identify and locate all of the responsive records within its custody or control.[9]

Parties’ representations

Cabinet Office’s representations

[14] Cabinet Office submits that it provided the appellant’s request to the Premier’s Office, whose staff determined the accounts to search based on who was most likely to have responsive records given their knowledge or work with the Greenbelt matter. In this regard, Cabinet Office submits the Premier’s Office searched the following six accounts:

• Former Deputy Chief of Staff and Head of Policy
• Former Executive Assistant to the Premier
• Premier of Ontario
• Current Chief of Staff
• Deputy Chief of Staff, Policy
• Director, Housing Policy

Cabinet Office advises the Deputy Chief of Staff, Policy and the Director, Housing Policy, searched their own records. The Special Advisor to the Deputy Chief of Staff conducted the searches of the email and OneDrive accounts belonging to the two former staff members. Finally, Cabinet Office submits the Executive Assistant to the Chief of Staff and Scheduler of the Premier conducted the searches of the Premier and Chief of Staff’s accounts.

[15] In conducting the search, Cabinet Office submits it provided the staff whose accounts were the subject of the search with the wording of the request. Cabinet Office submits that records relating to the Greenbelt land removals were located and subsequently reviewed for “directive/direction/orders” from the Premier’s Office to the ministry to remove lands. Cabinet Office submits it did not locate records responsive to the appellant’s request.

[16] To support its representations, Cabinet Office provided an affidavit sworn by the Senior Manager of its FOI (Freedom of Information) and Issues Unit which summarizes the searches conducted.

[17] During mediation, Cabinet Office submits it conducted an additional due diligence search, applying the following seven search strings in searches of the inbox and sent folders of the Premier’s Office staff accounts:

1. “greenbelt” OR “oak ridges moraine” OR “duffins rouge agricultural preserve” OR “cherrywood”
2. “11011 pine valley” OR “11861 mccowan” OR “12045 mccowan” OR “547419^th ave”
3. “10235 Highway 48” OR “10378 highway 48” OR “10541 highway 48” OR“10379 kennedy”
4. "Kingston Road" AND ("765" OR "775")
5. “331 fifty” OR “339 fifty”
6. “special project” OR “SP – GB” OR “GB” OR “special project – GB”
7. “Green Belt”[10]

[18] Cabinet Office submits it conducted this additional search for the following 29 accounts belonging to Premier’s Office staff:

• Current Chief of Staff
• Deputy Chief of Staff, Issues Management and Legislative Affairs
• Former Chief of Staff
• Former Special Assistant to the Premier
• Former Principal Secretary
• Deputy Chief of Staff, Media, Stakeholder Relations and Forward Planning
• Deputy Chief of Staff, Strategic Communications
• Former Deputy Chief of Staff and Head of Policy
• Former Manager Stakeholder Relations
• Deputy Chief of Staff, HR Administration & Tour
• Premier of Ontario
• Former Director of Housing
• Former Executive Assistant to the Premier, former Advisor, Stakeholder Relations
• Former Executive Director, Stakeholder Relations
• Former Deputy Chief of Staff
• Former Executive Assistant to the Premier, current Director of Priority Initiatives
• Head of Priority Initiatives
• Former Deputy Chief of Staff
• Executive Director Media & Stakeholder Relations
• Former Policy Advisor
• Communications Advisor
• Senior Communications Strategist
• Former Senior Issues Manager
• Former Director of Policy
• Former Communications Strategist
• Communication Strategist
• Former Issues Manager
• Director, Transportation & Infrastructure Policy
• Former Director of Policy

[19] In determining which accounts to search, Cabinet Office submits knowledgeable staff from the Premier’s Office selected the accounts of staff who were either current or former staff employed by the Premier’s Office during the relevant timeframe, and who would have been involved in the Greenbelt matter or expected to have records relating to it. Cabinet Office submits these searches were conducted for the accounts of senior staff currently employed in the Premier’s Office who were most likely to have responsive records. For the former employees, Cabinet Office submits its IT department granted proxy access to staff to conduct the searches on the former staff’s behalf.

[20] Cabinet Office submits the searches of the staff accounts were conducted by staff of the Premier’s Office. To be specific, the Issues Manager and Special Advisor, Research Advisors, Executive Assistants, and Office Assistants/Interns in the Premier’s Office conducted the searches for responsive records.

[21] Cabinet Office submits that searches were conducted in the Outlook accounts of the relevant staff, which included their inboxes, deleted folders, sent folders, and calendar entries. Current employees’ computer hard drives, network drives and physical documents were also searched. Cabinet Office submits the Premier’s Office keeps physical records on an “infrequent, individual basis” and does not store any documents offsite. Cabinet Office submits all staff Outlook inboxes, which include the sent, received, and draft folders for the entirety of their tenure, are automatically stored in accordance with the Premier’s Office’s record maintenance policy.

[22] Cabinet Office submits this second search yielded 9,000 potentially responsive records. After a review, Cabinet Office confirmed that only two records were responsive to the appellant’s request for records of directives: a mandate letter dated June 29, 2022 and a draft mandate letter dated June 28, 2022.

[23] In addition, Cabinet Office submits the Auditor  General requested the Premier’s Office to provide it with records as part of its investigation into the Greenbelt matter. The Premier’s Office provided the Auditor  General with records in June 2023. Cabinet Office submits a copy of these records were securely preserved and searched by its FOI staff as part of its search in response to this request.

[24] Cabinet Office refers to the Integrity Commissioner ’s Report which states,

… the Premier’s Office staff were not providing such direction [i.e. regarding property selections]. The Premier’s Office was kept in the dark by [the ministry’s former chief of staff] as to the process he drove for the selection of properties to be removed from the Greenbelt until very near the end before the briefing of the minister.[11]

[25] Cabinet Office also notes paragraph 563 (ii) of the Integrity Commissioner ’s Report found that the ministry’s former chief of staff “had a leading and almost exclusive role in selecting the properties to be removed or redesignated from the Greenbelt.”

[26] Cabinet Office submits these portions of the Integrity Commissioner ’s Report demonstrate the Premier’s Office was not involved in the process for the selection of properties to be removed from the Greenbelt. Accordingly, Cabinet Office submits no additional records beyond those located can reasonably be expected to exist.

Appellant’s representations

[27] The appellant submits Cabinet Office did not conduct a reasonable search for responsive records.

[28] First, the appellant submits Cabinet Office “unreasonably limited its search terms when designing its search methodology and did not consult experienced employees with direct knowledge of the Greenbelt project to ensure all responsive records would be captured in the search.”

[29] The appellant refers to IPC Order PO-3304 which found that institutions should adopt a “liberal interpretation of a request, in order to best serve the purpose and spirit of the Act .” The appellant submits Cabinet Office adopted a definition of “directive” that was “unreasonably narrow” in its previous search which explains why the Premier’s mandate letter was not captured originally. The appellant submits Cabinet Office has not indicated whether its subsequent searches applied a reasonable definition of “directive” when conducting its search, such as the dictionary definition he had provided.

[30] With regard to Cabinet Office’s second search which used the search terms identified in paragraph 16, the appellant submits they were examples he provided to Cabinet Office in relation to other FOI requests. The appellant submits the other FOI requests were “similar but not identical” to the request at issue in this appeal. The appellant submits the other FOI requests related to the removal of any of the fifteen specific land areas that had been removed from the Greenbelt in late 2022. In contrast, this request is for records of directives related to any removal of lands from the Greenbelt, including lands that were not among the fifteen land areas that were to be removed.

[31] As such, the appellant submits the search strings used by Cabinet Office in relation to the other requests would not capture all records responsive to this request. For example, the site-specific search strings used for the other requests would not capture directives relating to the seven land areas considered for removal from the Greenbelt but were not part of the final fifteen selected. Similarly, the appellant submits these search strings would not capture directives concerning the decision to exclude from consideration the 700+ requests for removal received from other Greenbelt landowners nor would they capture directives “concerning site selection criteria or other decisions related to the Greenbelt removals.”

[32] The appellant submits the Greenbelt matter was a “highly sensitive, high priority matter.” The appellant submits the Auditor  General and Integrity Commissioner ’s reports reveal that information concerning the Greenbelt project was tightly controlled within the government. The appellant alleges there were experienced employees within Cabinet Office and the Premier’s Office “who would have been aware of the Greenbelt project and would have knowledge about how to locate records responsive to my request.” The appellant submits there is no evidence Cabinet Office consulted employees with direct experience with the Greenbelt project when developing its search methodology, including those “known to have knowledge of directives from the Premier’s Office concerning the Greenbelt.”

[33] The appellant submits he received a large package of records from the ministry in response to another FOI request. The appellant submits this disclosure reveals evidence that government officials used code terms like “Special Project” or “SP” to refer to the Greenbelt project. The appellant submits there are a few records that were altered prior to being forwarded to the ministry’s former Chief of Staff with the term “Greenbelt” or “GB” being replaced with the term “G*.”

[34] The appellant submits the Auditor  General’s Report revealed evidence of the unlawful deletion of Greenbelt records and the inappropriate use of personal email accounts. The appellant submits there are “reasonable grounds to believe” that the use of code terms when discussing the Greenbelt project, as well as the alteration of records to remove references to Greenbelt are evidence of attempts to conceal information and frustrate potential FOI searches. Given these circumstances, the appellant submits “special efforts” are likely required to conduct a reasonable search. The appellant takes the position that these special efforts should include consultations with experienced employees with direct knowledge of how matters regarding the Greenbelt project were communicated, and what sort of search methodology would be reasonably likely to locate records of directives from the Premier’s Office.

[35] The appellant submits there is evidence of directives from the Premier’s Office to the ministry regarding the Greenbelt project. For example, the appellant refers to the sworn testimony before the Standing Committee on Public Accounts on May 6, 2024,[12] in which the former Deputy Minister at the ministry as well as the Assistant Deputy Minister both affirmed their belief that the former Chief of Staff received direction from the Premier’s Office concerning the Greenbelt removal project. Specifically, the appellant relies on this extract:

[Question]: With the Integrity Commissioner’s report, on page 46, there is a statement there saying that you told the Integrity Commissioner  that [the former minister’s Chief of Staff] would generally receive direction on policy details from the Premier’s Office. That’s from the Integrity Commissioner ’s Report. [[13]] So do you believe that the Premier’s office provided [sic] direction to [the former minister’s Chief of Staff] about the selection of sites for removal from the greenbelt? Given that that’s what was said to the Integrity Commissioner .

Assistant Deputy minister: Certainly. In discussions we had with […] who was the chief of staff at the time, he indicated that he had been in touch with the Premier’s office, but we had just his verbal recollections to go from.

[36] The appellant also refers to this extract from the testimony of the former Deputy minister to support his position:

[Question]: This is again a question to [the former Deputy Minister]. This also, I believe, refers to statements that you made to the Integrity Commissioner . On page 46 of the Integrity Commissioner ’s report, you said that you believe the selection of sites for removal from the greenbelt “was done in some capacity with the Premier’s office.” [[14]] could you clarify what you mean by that statement? Who was talking to who?

[Former Deputy Minister]: As the secretary noted in her response to your question, the original direction in respect of removal and addition of lands from the greenbelt originates with a mandate letter, which comes from cabinet and the Premier’s office is aware of that and engaged in that.

During the course of the work during the month of October, [the former minister’s Chief of Staff] did refer to conversations with the Premier’s office and that was the basis of my understanding, was his reference to conversations that he was having as described to me and [the Assistant Deputy Minister].

[37] The appellant also refers to the Integrity Commissioner ’s Report which, he claims, contain inferences to the Premier’s Office providing the ministry or the former minister’s Chief of Staff with directives regarding the Greenbelt matter. For example, the Integrity Commissioner ’s Report refers to an “hour chat” on September 23, 2022 between the Premier’s former Chief of Staff and the former minister’s Chief of Staff at which the former minister’s Chief of Staff said he received “clear direction” on the Greenbelt project.[15] The appellant also notes the former minister’s Chief of Staff claimed the Premier’s Chief of Staff was the “decision maker in the Premier’s Office” for the Greenbelt project.[16]

[38] The appellant also refers to records he has obtained access to through other FOI requests,[17] which include notations such as “PO [Premier’s Office] wants this done” or “they’re bringing it to PO.”

[39] In addition, the appellant submits Cabinet Office did not make reasonable efforts to locate records in the personal accounts of Premier’s Office staff, despite evidence that they regularly used their personal accounts to conduct government business. The appellant refers to the Auditor  General’s Report, which found that political staff received emails from lobbyists and other external parties on their personal email accounts that they then forwarded to their government email account or vice versa.[18] Given this information, the appellant submits “there are reasonable grounds to believe there may be additional responsive records located on the personal accounts and devices of current and former [Premier’s Office] officials.”

[40] The appellant refers to a media article that describes how the Premier has admitted to using his non-government devices to conduct government business.[19] The appellant also claims the Premier’s Chief of Staff has been reported to have used his personal email address to facilitate government-related communications.[20]

[41] Given these reports, the appellant submits there is clear evidence of Premier’s Office staff using personal accounts and devices to conduct government business. As such, he submits there is reason to believe additional responsive records may be located on the personal accounts and devices of current and former Premier’s Office officials.

[42] Finally, the appellant raises concerns regarding the deletion and preservation of records. The appellant notes the Auditor  General’s Report revealed that Greenbelt records were “regularly being deleted by political staff.”[21] The appellant submits it is unclear whether Cabinet Office has taken all reasonable steps to preserve and recover any responsive Premier’s Office records that may have been deleted.

Cabinet Office’s reply representations

[43] Cabinet Office submits it adopted a broad and liberal definition of the term directive in its search. Specifically, Cabinet Office states it interpreted the term to mean directives and orders, and any direction, instructions or guidance from Premier’s Office staff to ministry staff. Cabinet Office submits this interpretation was applied in its review of the records resulting from the search of the 29 staff accounts belonging to Premier’s Office staff. Furthermore, it applied this interpretation when conducting the supplementary search through the records that were sent to the Auditor  General as part of her investigation in June 2023.

[44] Cabinet Office reviewed the appellant’s evidence regarding the existence of additional responsive records and submits the statements, documents, and information he provided do not demonstrate additional responsive records exist in the Premier’s Office.

[45] Cabinet Office refers to the quotes the appellant provided from the Integrity Commissioner ’s Report that he concluded provides evidence of directives from the Premier’s Office staff to ministry staff concerning the Greenbelt project for which responsive records should exist and should have been found in a reasonable search. However, Cabinet Office submits those quotes refer to statements about meetings, verbal discussions, virtual or in person “chats.” Cabinet Office submits none of these quotes specifically confirm the Premier’s Office gave directions or directives to the ministry.

[46] Cabinet Office addresses the records the appellant referred to that were disclosed to him through other FOI requests. Cabinet Office submits these documents and the suggestion that these documents provide evidence of direction from Premier’s Office staff was addressed in the Integrity Commissioner ’s Report. Specifically, Cabinet Office submits the Integrity Commissioner  found,

Based on the contemporaneous notes and evidence of the ministry officials whom I interviewed I find it more likely than not that [the former minister’s Chief of staff] did say that the properties were given from the premier or the Premier’s Office but, for reasons set out in the Analysis section below, his motive for dropping the name of the premier or the office was probably done to lend authority to his direction to the ministry public servants and not based on reality.[22]

[47] Cabinet Office submits this passage indicates the former minister’s Chief of Staff used the Premier’s name in providing direction but did so to “lend authority” to his own direction. Cabinet Office claims this passage demonstrates the Premier did not actually provide direction to the former minister’s Chief of Staff.

[48] Cabinet Office submits the Premier’s Office was not involved in Greenbelt decisions as early as the appellant suggests. Cabinet Office submits the minister’s former Chief of Staff did not brief the Premier’s Office about Greenbelt amendments until October 17, 2022. Cabinet Office refers to the Integrity Commissioner  as follows:

[The former minister’s Chief of Staff] told me that he began briefing the Premier’s Office about the Greenbelt project about two weeks before it was announced, on October 17, 2022 and shortly thereafter. Most contemporaneous documentation corroborates his evidence with respect to this timeframe.[23]

[49] Cabinet Office notes the Integrity Commissioner  also found that the former minister’s Chief of Staff left Premier’s Office staff “in the dark” because he did not trust the Director of Housing Policy in the Premier’s Office with the project.[24]

[50] Cabinet Office submits these portions of the Integrity Commissioner ’s Report found the Premier’s Office was not involved in the process for the selection of properties to be removed from the Greenbelt, which is consistent with its search that resulted in no responsive records providing instructions or directions on removing land from the Greenbelt.

[51] In addition, Cabinet Office submits the Auditor  General’s report confirms the former minister’s Chief of Staff made the decisions regarding the properties to be selected for removal from the Greenbelt and the Premier’s Office was not aware of how the specific properties were identified.[25]

[52] Cabinet Office submits it did not limit its search to the search terms identified by the appellant as examples for the search. Cabinet Office confirms it included search terms such as “special project” and “SP” when conducting its search. With regard to the term “G*”, Cabinet Office submits it did not use this term in its search because the asterisk would capture thousands of records with words that began with the letter G, which would make the search unfeasible.

[53] Cabinet Office refutes the appellant’s submission that it did not consult with employees with direct experience with the Greenbelt project and refers to its initial representations in which it listed the individuals consulted in the searches.

[54] With regard to personal accounts, Cabinet Office submits the appellant’s representations on this issue are speculative. Nonetheless, Cabinet Office submits that all Premier’s Office staff were instructed to review personal accounts for any business records that may exist outside of government accounts and move them to their government accounts.

[55] Finally, Cabinet Office submits there is no evidence that records were deleted. As such, it argues there is no need to recover any records.

Appellant’s Sur-Reply Representations

[56] The appellant maintains his claim that officials from the Premier’s Office “most likely” directed the former minister’s Chief of Staff and other ministry officials with respect to changes to the Greenbelt. He asserts records of these directives should exist.

[57] The appellant claims the passage from the Integrity Commissioner ’s Report does not support Cabinet Office’s claim. The appellant submits the Integrity Commissioner ’s Report focuses on the ministry and the former minister’s role in the Greenbelt project and not the Premier’s. Therefore, the Integrity Commissioner ’s Report does not address whether the Premier’s Office gave direction to the ministry regarding changes to the Greenbelt.

[58] The appellant notes the Premier’s Chief of Staff was reported to have lost text messages when he exchanged his personal phone in December 2023.[26] The appellant submits the missing text messages included “sensitive” government records that were the subject of another, unrelated FOI request. The appellant submits that during this period where the Premier’s Chief of Staff replaced his personal phone and lost government records, the deletion of government records and use of personal accounts had been flagged by the Auditor  General in her report. As such, the appellant submits the Premier’s Chief of Staff knew or ought to have known to properly preserve records on his personal accounts or devices and take “all reasonable steps to avoid their loss.” The appellant submits he failed to do so.

[59] The appellant submits Cabinet Office does not address his evidence demonstrating that Premier’s Office officials did not consistently comply with its own retention and deletion policies and guidelines. The appellant submits Cabinet Office has not conducted a reasonable search because it made no effort to recover any records that may have been deleted.

Analysis and Findings

[60] For the reasons that follow, I find Cabinet Office has provided sufficient evidence to demonstrate it has conducted a reasonable search for records responsive to the appellant’s request for all directives sent by staff at the Premier’s Office to the ministry regarding the removal of lands from the Greenbelt as required by section 24  of the Act .

[61] Specifically, I am satisfied Cabinet Office engaged experienced employees knowledgeable in the subject matter of the request who expended a reasonable effort to locate responsive records.[27] I further find the appellant has not provided a reasonable basis for his belief that additional responsive records, in the form of directives sent by staff at the Premier’s Office to the ministry regarding the removal of lands from the Greenbelt, exist.

[62] Before I proceed with my analysis, I will address the appellant’s submission that the subject matter of this request requires “special efforts” on the part of Cabinet Office to locate responsive records.

Special efforts

[63] The appellant takes the position that the subject matter of his request and the circumstances surrounding the Greenbelt matter require “special efforts” by Cabinet Office to locate responsive records. The appellant submits “special efforts are likely required” for the following reasons:

• He received a package of records from the ministry that reveals that government officials used code terms such as “Special Project”, “SP”, or “G*” to describe the Greenbelt project to “conceal information and possible frustrate potential FOI searches.”
• The Auditor  General’s Report revealed evidence of unlawful deletion of Greenbelt records as well as the inappropriate use of personal email accounts to similarly conceal information and frustrate potential FOI requests.

[64] In Interim Order PO-4611-I, the adjudicator considered a similar argument raised by the appellant in relation to an identical request submitted to the ministry. The adjudicator noted the IPC has consistently interpreted the extent of an institution’s search obligations upon receiving an access request under the Act and drew on Order M-909, which summarized this duty as follows:

In my view, an institution has met its obligations under the Act  by providing experienced employees who expend a reasonable effort to conduct the search, in areas where the responsive records are likely to be located. In the final analysis, the identification of responsive records must rely on the experience and judgment of the individual conducting the search.

[65] The adjudicator in Interim Order PO-4611-I agreed with this approach and adopted it in relation to the circumstances before her. She stated,

I am not persuaded that the use of code terms, the heighted public interest in the subject matter of the request [i.e., the Greenbelt matter] or the observations of the Auditor  General place a more onerous burden upon the ministry to make “special efforts” beyond what is reasonable, to locate records responsive to the appellant’s request.

The Act  does not require the ministry to prove with certainty that the records the appellant is seeking do not exist. To properly discharge its obligations under the Act , the ministry must provide sufficient evidence to show that it has made a reasonable effort to identify and locate any records that are responsive.[28] There is no basis for me to find that the ministry is required to expend additional efforts, over and above what is reasonable.[29]

[66] I agree with the approach taken in Interim Order PO-4611-I and adopt it in this appeal. I find Cabinet Office is required to demonstrate it made a reasonable effort to identify and locate records responsive to the appellant’s request. I further find there is no basis to conclude that Cabinet Office ought to expend additional or “special” efforts beyond what is reasonable to identify and locate responsive records.

Search methodology

[67] I have reviewed the evidence provided by the appellant and Cabinet Office regarding the searches conducted in response to the appellant’s request for all directives from the Premier’s Office to the ministry regarding the proposed removal of land from the Greenbelt. Based on that review, I am satisfied Cabinet Office has conducted a reasonable search for responsive records.

[68] First, I accept Cabinet Office did not interpret the term directives too narrowly in its searches. Cabinet Office interpreted the term directive to mean directives and orders, and any direction, instructions or guidance from Premier’s Office staff to the ministry. I find this interpretation of directive to be broad and liberal as required by the IPC.[30] I accept Cabinet Office’s evidence that it adopted this definition of the term.

[69] In addition, I find Cabinet Office did not “unreasonably limit” its search terms when designing its search methodology to locate records responsive to the appellant’s request. I find Cabinet Office designed a reasonably broad search using the combination of terms set out in paragraph 16 above. I note Cabinet Office did not restrict its searches to only the site-specific terms provided by the appellant in the request but included additional terms such as “green belt”, “GB”, and “special project” as terms that could capture records responsive to the appellant’s.

[70] I acknowledge the appellant’s claim that Cabinet Office’s original search did not locate the Premier’s mandate letter originally and ought to have. However, Cabinet Office’s subsequent search located this record and its draft.

[71] I also note the appellant claims Cabinet Office’s use of search strings that he provided as examples for a related FOI request would not have captured all records responsive to this request. The appellant claims the related FOI request contained “site-specific search strings” while this request is for any removal of lands from the Greenbelt. I do not agree. The search strings used by Cabinet Office are not limited to the properties identified in the appellant’s examples for the related FOI request. Cabinet Office also included terms such as “GB” and “special project” when conducting its search as well as “greenbelt.” In addition, Cabinet Office provided staff with the wording of the appellant’s request, so they were aware of the types of records he is seeking access to. Upon my review, Cabinet Office provided sufficient evidence to demonstrate its search for responsive records was not site specific.

[72] I also accept Cabinet Office’s submission that a search for records containing the term “G*” is unreasonable given the number of records that would be generated with this term. I note the appellant did not dispute Cabinet Office’s claim regarding the use of this search term, although he maintains his allegation that Premier’s Office staff used special terms such as “G*” or “SP” to evade or frustrate access requests made under the Act . I make no finding about Premier’s Office staff’s use of special or code terms. However, based on Cabinet Office’s inability to search using a term such as “G*”, it is clear the use of this term, and potentially others, frustrated Cabinet Office’s ability to search for records that may relate to the Greenbelt project.

Employees knowledgeable in the subject matter of the request

[73] From my review of Cabinet Office’s representations and evidence, I am satisfied that employees knowledgeable in the Greenbelt project either conducted the searches or were the subject of searches. Cabinet Office submits that Premier’s Office staff selected the accounts of the individuals who were either current or former staff employed by the Premier’s Office during the relevant timeframe and would have been involved in the Greenbelt matter or otherwise expected to have records relating to it. Cabinet Office provided a list of 29 current and former staff who were requested to search their records and accounts for responsive records. I have reproduced them at paragraphs 14 and 17, above. In my view, these individuals are experienced employees who are knowledgeable in the subject matter of the appeal.

[74] In addition, I accept Cabinet Office’s evidence that these employees conducted extensive searches applying a broad interpretation of the term directive in conjunction with a variety of search terms, which includes “Greenbelt”, specifically identified pieces of land, and a number of code terms. I also accept Cabinet Office’s evidence that these employees considered the type of information the appellant seeks, i.e. directives from the Premier’s Office to the ministry regarding the proposed removal of land from the Greenbelt, while conducting these searches. Cabinet Office conducted searches in the Outlook accounts of the relevant staff, which included their inboxes, deleted folders, sent folders, and calendar entries. Cabinet Office also searched current employees’ computer hard drives, network drives, and physical documents, although it acknowledges physical documents are kept on an “infrequent, individual basis.” As for former staff, the individuals who conduced the searches were provided with proxy access to the former staff’s Outlook accounts and reviewed these accounts for responsive records.

[75] Furthermore, I acknowledge Cabinet Office asked all Premier’s Office staff to review their personal accounts for any government records that exist outside of government accounts and move them to their government accounts for the purposes of the search.

[76] Finally, I accept Cabinet Office’s evidence that it searched the copy of records the Premier’s Office provided to the Auditor  General as part of her investigation into the Greenbelt matter.

[77] Overall, I am satisfied Cabinet Office engaged experienced and knowledgeable staff to search for records responsive to the appellant’s request and these employees expended reasonable efforts to locate responsive records.

Records of directives

[78] Cabinet Office located two records that are responsive to the appellant’s request: a mandate letter and a draft mandate letter. The appellant takes the position that additional responsive records ought to exist because he believes there is evidence demonstrating that staff at the Premier’s Office, including the Premier’s Chief of Staff and the Premier, provided direction to staff at the ministry regarding the selection of lands to be removed from the Greenbelt.

[79] The evidence provided by the appellant includes a variety of references to verbal discussions between staff at the ministry and the Premier’s Office. The appellant refers to the sworn testimony made before the Standing Committee on Public Accounts in which the ministry’s Assistant Deputy Minister testified that the former minister’s chief of staff “had been in touch with the Premier’s Office” but only had “verbal recollections to go from.” The appellant also refers to references made by the former minister’s Chief of Staff to “chats” and discussions he had with the Premier’s Chief of Staff in which the former minister’s Chief of Staff said he received “clear direction” on the Greenbelt project.[31]

[80] On the other hand, Cabinet Office takes the position that the appellant’s evidence refers to statements about meetings and verbal discussions, but that none of the appellant’s evidence confirms the Premier’s Office provided directions or directives to ministry staff. Cabinet Office further notes the Integrity Commissioner ’s Report noted that “was more likely than not that” the former minister’s Chief of Staff said the properties were selected by the Premier’s Office to “lend authority to his direction to the ministry public servants and not based on reality.”[32]

[81] The adjudicator in Interim Order PO-4611-I considered the same evidence put forth by the appellant in relation to the requests for directives in the custody or control of the ministry. In her review of the evidence provided by the appellant, the adjudicator found,

The reports of the Auditor  General and the Integrity Commissioner  may cast doubt on whether the verbal direction received by ministry officials actually originated in the Premier’s office, or as the Integrity Commissioner  concludes, the name of the Premier or his office was used to “lend authority to his direction.” However, the veracity of the direction delivered orally to ministry officials is not relevant to the issue of whether records of that verbal direction exist. In my view, the evidence set out above provides a reasonable basis to believe that verbal direction regarding the Greenbelt project was given to ministry officials that was, at the time it was received, understood to originate with the Premier or his office notwithstanding that the authority of that direction may subsequently have been called into question.[33]

[82] I have reviewed the evidence provided by the appellant and Cabinet Office. I do not agree with the appellant that there is clear evidence of written or recorded direction from the Premier or his office to the ministry regarding the removal of lands from the Greenbelt. In fact, as the adjudicator found in Interim Order PO-4611-I, the reports of the Auditor  General and Integrity Commissioner  cast doubt on whether verbal direction was actually provided by the Premier’s Office. It may be the case that the former minister’s Chief of Staff used the Premier’s name to lend authority to the direction he provided to ministry staff, as the Integrity Commissioner ’s Report suggests.

[83] Nonetheless, the evidence before me indicates that even if there was some direction provided by the Premier or his office, it was through verbal discussions or in meetings. It does not appear this direction was recorded either in notes, memoranda, emails or similar correspondence by Premier’s Office staff. In my view, Cabinet Office’s evidence demonstrates it conducted a broad search for records of direction or directives from the Premier’s Office to the ministry in relation to the proposed removal of property from the Greenbelt.

[84] I note in Interim Order PO-4611-I, the adjudicator found the appellant had provided a reasonable basis for his belief that additional responsive records ought to exist, namely in the form of contemporaneous meeting notes taken by ministry staff. The adjudicator made this finding based on multiple references to the existence of contemporaneous meeting notes throughout the Integrity Commissioner ’s Report.[34] Given the ministry’s mandate to implement the Greenbelt project, it is reasonable to believe there would have been written notes taken by the ministry staff relating to the direction they understood to have originated from the Premier’s Office.

[85] However, in the case of the Premier’s Office, it is not apparent that similar records ought to exist regarding the direction the Premier’s Office may or may not have given verbally. None of the evidence before me suggests that Premier’s Office held meetings to relay its verbal directions to the ministry generally or to the former minister’s Chief of Staff, specifically. Further, the appellant has not pointed me to similar evidence in either the Auditor  General’s Report, the Integrity Commissioner ’s Report, or the sworn testimony before the Standing Committee for Public Accounts, that records of directives exist in the Premier’s Office. Therefore, it is not apparent to me that records of any verbal direction that may have originated from the Premier or his office exist.

[86] In his representations, the appellant refers to an email exchange in which the former minister’s Chief of Staff states that “in speaking with [two senior Premier’s Office staff], I think its important we all chat either virtually or face to face so we can all be on the same page.” The appellant submits the former minister’s Chief of Staff was seeking clarity from the Premier’s Chief of Staff and another senior staffer. While this may be the case, this passage does not provide me with a reasonable basis to believe that written records of direction exist. Rather, this passage suggests that the discussions or “directives” that took place with the Premier’s Office were done through meetings, discussions, or virtual or face to face chats. The evidence before me indicates the Premier’s Office’s role in the Greenbelt project was not recorded through emails, memos, text messages, or other hard copies.

[87] Finally, I have reviewed the appellant’s arguments regarding the records that include notations about the Premier’s Office’s position. Upon review, I find these do not support a finding that there is reason to believe that records of direction exist beyond those already located by Cabinet Office. It appears these notations, such as “PO wants this done”, reflect what took place in a meeting the Premier’s Office may have participated in or an indication of an impression the ministry officials had of the Premier’s Office’s wishes, which may have been provided verbally. I find these notations do not confirm the Premier’s Office created written records of direction to the ministry in relation to the Greenbelt matter that were not already located by Cabinet Office.

[88] In my view, I find the appellant has not provided me with evidence to demonstrate a reasonable basis for his belief that records of direction in the form of “email, memo, text message, hard copy or other media” from the Premier’s Office to the ministry regarding the proposed removal of lands from the Greenbelt exist beyond the mandate letter and its draft that were located.

Personal accounts

[89] The appellant takes the position the Cabinet Office ought to have searched the personal accounts of staff at the Premier’s Office. The appellant bases this claim on the fact that the Auditor  General found that political staff at the ministry used their personal devices and accounts to conduct government business.

[90] As stated above, Cabinet Office confirmed it requested all Premier’s Office staff to review their personal accounts for any government records and move them to their government accounts for the purposes of the search.

[91] In response, the appellant referred to the Auditor  General’s Report, which found that political staff received emails from lobbyists and other external parties on their personal email accounts that they then forwarded to their government email account or vice versa.[35] Given this information, the appellant took the position that “there are reasonable grounds to believe there may be additional responsive records located on the personal accounts and devices of current and former [Premier’s Office] officials.”

[92] The appellant also referred to the Premier’s Chief of Staff who lost text messages when he exchanged his cell phone number in December 2023. The appellant referred to evidence which demonstrates that the Premier’s Chief of Staff conducted government business on his personal devices and on his personal accounts. The appellant also claims the Premier’s Chief of Staff knew or ought to have known to properly preserve records on his personal accounts or devices but failed to do so.

[93] I agree with the appellant that the Premier’s staff should not have been using their personal cell phones or other devices or accounts to conduct government business. The fact that text messages that may relate to government business may have been lost is very concerning. However, the evidence cited by the appellant is not sufficient to establish that a further search for records relating to directives from the Premier’s Office to the ministry should be ordered.

[94] The only issue before me is whether Cabinet Office conducted a reasonable search for records of directives from the Premier’s Office to the ministry regarding the proposed removal of lands from the Greenbelt. The appellant has not provided sufficient evidence in this appeal to establish that staff in the Premier’s Office failed to properly track or log work on government devices. Similarly, the appellant has not provided sufficient evidence to establish that the failure of Premier’s Office staff to preserve records has any bearing on the reasonableness of Cabinet Office’s search for responsive records that otherwise may continue to exist.

[95] As I found at paragraphs 61 and 88 above, the appellant has not provided sufficient evidence to establish a reasonable basis for his belief that any records of directives originating with the Premier’s Office exist. Given these circumstances, I will not order Cabinet Office to do a further search for records that may be contained in the personal email accounts of former Premier’s Office staff.

[96] I distinguish my findings in this appeal from my findings in Order PO-4638, in which I ordered Cabinet Office to request certain former Premier’s Office staff to search their personal accounts for Premier’s Office records relating to the Greenbelt matter. I made the decision in Order PO-4638 in light of the broader scope of the request in those appeals.[36] I note the request before me here is limited to any records of directives issued by the Premier’s Office to the ministry regarding the proposed removal of lands from the Greenbelt, which the appellant has failed to persuade me there is a reasonable to believe exist. Further, in Order PO-4638, I found the appellant provided me with clear evidence that a responsive record relating to the Greenbelt matter was sent to the personal email account of a former employee of the Premier’s Office and was not then transferred to their government account. I also noted that Cabinet Office required current Premier’s Office staff to attest to using only government systems and accounts for government business and ensure any government records that may have been inadvertently received on a personal email account are transferred into the government system for proper record retention. However, it appeared that former Premier’s Office staff whose government staff accounts were searched did not properly participate in this attestation process. Given these circumstances, I ordered Cabinet Office to request former Premier’s Office staff who did not participate in the attestation process, including the former Executive Director, to search their personal records for records relating to the proposed removal of lands from the Greenbelt.

[97] I remind Cabinet Office it is important for government staff to conduct their government business using their government accounts or devices and to store all government related records on government property, accounts or servers. It is also expected that government records will be located on government property, or in government accounts and servers. I note the Auditor  General’s Report found, at page 67, that,

… political staff received emails from lobbyists and other external parties on their personal email accounts that they then forwarded to their government email. Conversely, there were occasions when government emails were forwarded by political staff from their government accounts to their personal accounts.

It is, therefore, apparent that the personal accounts of political staff were used as a conduit through which emails were forwarded to or from government accounts. Given these circumstances, I found there was sufficient reason to be concerned about personal emails being used to conduct government business in Order PO-4638.[37]

[98] However, in the appeal before me, I find the appellant has not established that records of directives from the Premier’s Office to the ministry regarding the proposed removal of lands from the Greenbelt would exist. I acknowledge the appellant’s evidence that Premier’s Office staff may have conducted government business on their personal devices. However, I find no basis for the appellant’s belief that records of verbal direction from the Premier’s Office to the ministry regarding the Greenbelt would reasonably be expected to be found in the personal email accounts of Premier’s Office staff. I find there is no reasonable basis that any additional responsive records exist that would not have been caught by the searches conducted by Premier’s Office staff of their personal accounts, as directed by Cabinet Office. Accordingly, I will not order Cabinet Office to conduct a search of the personal accounts of Premier’s Office staff.

Deleted records

[99] Finally, in his representations, the appellant raised concerns regarding the deletion and preservation of records. The appellant submits it is “unclear” whether Cabinet Office has taken all reasonable steps to preserve and recover any responsive Premier’s Office records that may have been deleted.

[100] During the inquiry, I asked Cabinet Office to address whether it took all reasonable steps to recover responsive records that may have been deleted.

[101] In this regard, Cabinet Office submits it has no evidence that records were deleted and therefore, there was no need to recover any records. Cabinet Office submits it searched the records Premier’s Office preserved and provided to the Auditor  General as part of her investigation into the Greenbelt matter. Cabinet Office submits it conducted a reasonable search for records responsive the appellant’s request.

[102] I shared Cabinet Office’s position with the appellant. He submits he has provided “extensive evidence that records potentially responsive” to his request were deleted or “otherwise lost.”

[103] I have reviewed the appellant’s representations and find he does not provide “extensive evidence” that records of directives from the Premier’s Office to the ministry regarding the proposed removal of lands from the Greenbelt were deleted or lost. The appellant provides evidence of meetings or discussions in which he claims the Premier’s Office issued directives to the ministry, but no evidence to suggest that written records of such directives exist. The appellant also provides some evidence to demonstrate records were lost or deleted, such as the text messages of the Premier’s Chief of Staff or personal emails belonging to the former minister’s Chief of Staff. However, the appellant did not provide evidence to suggest that records of directives from the Premier’s Office to the ministry regarding the proposed removal of lands from the Greenbelt were among those records deleted or lost. Again, the evidence the appellant provided in this regard is speculative and does not form a reasonable basis for his belief that responsive records were deleted or lost.

[104] In any case, if there are responsive records that may have existed at one time, but no longer do, I find Cabinet Office expended reasonable efforts in the circumstances to locate responsive records that might exist in the “deleted folders” of staff’s email accounts.[38]

Conclusion

[105] For the reasons set out above, I find Cabinet Office conducted a reasonable search for responsive records as required by section 24(1)  of the Act .

ORDER:

The appeal is dismissed.

Original Signed by:		April 23, 2025
Justine Wai
Adjudicator