ORDER PO-4745-F

Appeal PA22-00533

Ministry of the Solicitor General

October 16, 2025

Summary: An individual made a request to the Ministry of the Solicitor General under the Freedom of Information and Protection of Privacy Act  for reports and other records related to a proposed correctional centre.

In Interim Order PO-4522-I, the adjudicator found that the ministry’s search for responsive records was not reasonable and ordered the ministry to conduct another search.

In this final order, the adjudicator upholds the ministry’s search for responsive records as reasonable, in part. She orders the ministry to conduct an additional search for emails related to three transportation reports and to issue an access decision on the results of that search.

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

Orders Considered: Orders PO-4522-I, and PO-4656.

OVERVIEW:

[1] This final order considers the reasonableness of the Ministry of the Solicitor General’s (the ministry’s) search following an interim order for records responsive to a request for reports and other records related to a proposed correctional centre.

[2] Under the Freedom of Information and Protection of Privacy Act  (the Act ), the requester sought access to:

… all records held by the Ministry of the Solicitor General related to the “Planning/Site Servicing/Transportation Reporting” that have been completed at the proposed site for the Eastern Ontario Correctional Complex [EOCC] in Kemptville (North Grenville) from 2020-03-01 to 2022-01-10.

[3] The ministry located 17 pages of responsive records consisting of an excerpt from a transportation impact assessment report, as well as internal ministry emails and ministry emails with Infrastructure Ontario (IO) about that excerpt. The ministry granted the appellant full access to the records it located. However, in its decision letter the ministry also advised the appellant that some responsive information did not exist with the ministry; it suggested that the appellant contact IO to inquire as to whether it has records responsive to the appellant’s request.

[4] The requester, now the appellant, appealed the ministry’s decision to the Information and Privacy Commissioner (the IPC) and the matter proceeded to adjudication stage of the appeal process.

[5] In Interim Order PO-4522-I (the interim order), I found that the ministry had not established that the additional responsive records which it had directed the appellant to request from IO were not within its custody or under its control. As a result, I ordered the ministry to conduct another search for those responsive records.

[6] The ministry conducted an additional search for responsive records in compliance with the interim order. It identified additional responsive records but advised the appellant that it was denying access to them in accordance with the introductory wording of section 10(1)  of the Act  because it lacks the requisite custody or control over these records. The ministry took the position that these records are under the custody and control of IO.

[7] In this final order, I uphold the ministry’s search for records responsive to the appellant’s request, in part. I order the ministry to conduct another search for emails about three Infrastructure Ontario reports and to issue an access decision on the results of its search.

DISCUSSION:

[8] The sole issue in this final order is whether the ministry has conducted a reasonable search for records responsive to the appellant’s request that are within its custody or control.

[9] If a requester claims that additional records exist beyond those found by the institution, the issue is whether the institution has conducted a reasonable search for records as required by section 24  of the Act .[1] If the IPC is satisfied that 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.

[10] Although a requester will rarely be in a position to indicate precisely which records the institution has not identified, they still must provide a reasonable basis for concluding that such records exist.[2]

[11] The Act  does not require the institution to prove with certainty that further records do not exist.[3] However, the institution must provide enough evidence to show that it has made a reasonable effort to identify and locate responsive records;[4] that is, records that are "reasonably related” to the request.[5]

[12] 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.[6] The IPC will order a further search if the institution does not provide enough evidence to show that it has made a reasonable effort to identify and locate all of the responsive records within its custody or control.[7]

Representations, Analysis and Findings

[13] In Interim Order PO-4522-I, I found that the ministry had not established that it did not have custody or control over additional responsive records. I ordered the ministry to search for additional responsive records and issue an access decision to the appellant, with respect to the results of its search. I determined that these additional records may include the records specifically identified by the appellant, being a traffic study report (as set out in the emails provided by the appellant), and records prepared for the public correctional centre consultation sessions in 2020 and 2021 that could include correspondence, meeting minutes, briefing notes, studies, and information slides.

[14] Following the interim order, the ministry issued an access decision that stated:

Please be advised that the Ministry of the Solicitor General (the Ministry) has conducted an additional search for responsive records in compliance with the Interim Order and we have denied access to records in accordance with section 10(1)  of the Act , which states that “every person has a right of access to a record or a part of a record in the custody or under the control of an ‘institution’…”.

Please be advised that the institution in this instance is the Ministry of the Solicitor General, and that we lack the requisite custody or control over the records you requested. The responsive records you are seeking access to is instead under the custody and control of Infrastructure Ontario (IO).

[15] The ministry also provided representations that indicated that following the interim order, it conducted the exact same search for records that it conducted previously. It reiterated its reliance on its representations and affidavit provided prior to the interim order.

[16] The ministry took the position that public correctional centre consultation session records, which include 11 pages of traffic study records, were not responsive to the appellant’s request. Despite this position, the ministry disclosed these records to the appellant again.[8]

[17] With respect to the other records referred to in the interim order that I ordered the ministry to search for, the ministry reaffirms its position that it does not have control over them within the meaning of the Act . It continues to take the position that if the appellant wants access to these records, she should file a request with IO.

[18] The ministry subsequently disclosed to the appellant, at her request, 68 pages of public consultation session records which the ministry had previously disclosed to her in response to another request. These records consist of a Speakers' List & Presentation Remarks - Community Session and Key Stakeholder Sessions, and two PowerPoint presentations from that session.

[19] Also following the interim order, the ministry advised, as it had suggested in both its original decision letter and the decision letter issued in compliance with the interim order, that the appellant had already made an identical request to IO as the request at issue in this appeal. This request was also appealed to this office. Following Order PO-4656 which addressed that request to IO and the subsequent appeal, IO disclosed to the requester the following three reports:

1. ‘Kemptville Correctional Centre – Traffic Impact Study and Parking Needs Assessment’ prepared by an engineering consulting company (74 pages),
2. ‘Kemptville Correctional Centre Development Feasibility Study’ prepared by an urban design company (38 pages), and
3. ‘Eastern Ontario Correctional Centre – [address] Functional Servicing Report (Draft)’ (962 pages).

[20] The ministry’s position was that, as a result of this disclosure, these three IO reports should no longer be at issue in this appeal.

[21] I agree with the ministry’s position that there is no need for the ministry to search for these three reports as the appellant has already received copies of them from IO. Therefore, I advised the appellant that, as she has received disclosure of these three records from IO in response to the identical request that she made to IO, I would no longer consider these records at issue in this appeal.

[22] In response, the appellant advised that she continues to believe that the ministry should have email records relating to the three reports that IO provided to her. She submits that email records should exist, since in order to move forward with the EOCC project, the ministry must have provided IO with more direction. She submits:

I believe it would be disingenuous on the part of [the ministry] to take the position that the three IO documents came into existence without any emails or other correspondence from [the ministry], being the ministry responsible for requesting, paying for, and thereafter using the three documents in question. The email records fall within my FOI [freedom of information] request for access to copies of all records relating to the planning, site servicing and transportation reporting and the appeal thereof.

[23] To be considered responsive to the request, records must “reasonably relate” to the request.[9] The appellant is seeking “all records” regarding the “Planning/Site Servicing/Transportation Reporting.” In my view, the emails that the appellant is claiming should have been located by the ministry in its search, ministry email records related to the three IO reports, are records responsive to the appellant’s request.

[24] I note that the ministry included in its 17-page disclosure to the appellant ministry emails about the excerpt of the transportation impact assessment report. These emails include emails between the ministry and IO about this excerpt.

[25] The ministry has not provided evidence that it searched for emails related to the three reports. Its evidence regarding the searches undertaken is for the reports only, as set out in the affidavit of the ministry’s Project Team Lead of the Corporate Services Division, where the affiant stated:

… I understand the appellant is searching for planning, site servicing and transportation reporting completed at the proposed site for the Eastern Ontario correctional complex in Kemptville from March 1, 2020, to January 31, 2022, inclusive. On or around February 16, 2022, I conducted a search for records on the Branch's shared and common file drives, where the kinds of records or reports the appellant is seeking would be stored. I did not find any responsive records.

I can advise that if the records do exist, they would be located at Infrastructure Ontario, which is a Crown agency of the Provincial Government. As the procurement and commercial lead for major public infrastructure projects involving the Provincial Government, I believe Infrastructure Ontario would have custody or control over the kinds of records the appellant is seeking. It is my understanding from Infrastructure Ontario that these technical reports (as noted above as per the FOI request) usually remain in draft form until closer to the date when the project is issued/tendered lo market…[.] [Emphasis added by me].

[26] The ministry is responsible for operating correctional institutions, but it is not responsible for constructing them. The construction of the correctional institution in Kemptville is being undertaken by IO, a Crown agency with an explicit mandate to build public infrastructure. From the initial disclosure of responsive emails to the appellant, it is clear that the ministry communicated by email both internally and with IO about the project.

[27] Based on my review of the records the ministry disclosed to the appellant in response to the request which included ministry emails, I find that a reasonable search for responsive records would include a search for emails between the ministry and IO about the three IO reports. The ministry and IO both had responsibilities related to the EOCC. Given the relationship between IO and the ministry concerning the EOCC, I find that the appellant has provided a reasonable basis for concluding that ministry email records exist related to the three IO reports.

[28] As the ministry has not provided any evidence that it has conducted a search for emails related to the three reports provided to the appellant by IO, I will order it to do so and issue an access decision.

[29] In all other respects I find that the ministry has conducted a reasonable search for records responsive to the appellant’s request and I uphold it.

ORDER:

1. I order the ministry to conduct a search for email records related to the three Infrastructure Ontario reports, taking into account the appellant’s representations in paragraph 22 above. If the ministry locates records or if no records are found, I order the ministry to issue an access decision, treating the date of this order as the date of the request for administrative purposes.
2. I uphold the ministry’s search for the remaining responsive records.

Original Signed by:		October 16 , 2025
Diane Smith
Adjudicator