THE DEMOCRATIC REPORTER
Pages of Special Interest;
Other Table of Contents;
The Canadian Environmental Law Association (CELA)
Submission to Appeal - Inquiry M-9500118
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The double spacing of most of this submission is as it was submitted.
"We submit that this claim, on the part of the City, lacks credibility." - How sweet it is to have the written opinion of a lawyer regarding the claims (or as I would say lies!), by the City of Mississauga. This is not the only time a lawyer has explained why the City was in the wrong or the Information and Privacy Commissioner Office but it is in writing.
Canadian Environmental Law Association was outstanding in that they bent their rules to make a submission on this very important issue as they agreed with me that it held great potential granting fast and cost effective access to government records. A key factor in trying to save the environment and most other democratic activities. However, to pursue this matter in court would have meant a very costly court case and the funds were just not there, because of that the City & the IPC do do whatever they cared to do, be as wrong, be as evil as they felt like, knowing we could no fight back!
So remember when you read all the Orders from the IPC putting me down and degrading my reasoning as to why or how I should be allowed access to City records to help our community save the Cawthra Bush. As these pages clearly show my reasoning was sound but no money for to buy justice in court, was really the issue.
What is most upsetting is that I can find no evidence the IPC ever considered this 12 page submission and a 12 page submission from a lawyer is not cheap! What I do find is the IPC doing everything it can to avoid granting the kind of access to government records that my methods would allow. Clearly the IPC wants to avoid that. Also, a newspaper article years later show how the IPC took the City of Toronto to court, to block access the City was granting to its computer records in a way that made it easier for the requester to use the records. I say there is a pattern to the IPC's efforts.
NOTICE OF INQUIRY - For Appeal M-9500118
1. MR. BARBER'S:
Canadian Environmental Law Association
L'Association canadienne du droit de l'environnement
517 College Street, Suite 401,
Toronto, Ontario M6G 4A2
Telephone (416) 960-2284 Fax (416) 960-9392
January 2, 1996
Mr. Walter Richardson
Dear Mr. Richardson:
Re: Appeal of Donald Barber, No. M-9500118
Attached are our submissions on the appeal.
CANADIAN ENVIRONMENTAL LAW ASSOCIATION
ASSOCIATION IN THE APPEAL BY DONALD BARBER.,
APPEAL NO. M-9500118.
SUBMITTED TO: Mr. Walter Richardson
The ARIS (Active Records Index System) index for EC. 12 of the City of
The Canadian Environmental Law Association is a public interest, non-profit
legal clinic, whose aim is to use legal means to advance environmental
protection and citizen participation in decisions related to environmental
concerns. Access to information is a crucial tool for citizens engaged in
environmental protection initiatives.
We submit that the ARIS requested by Mr. Barber constitutes a "record" as
defined in the Municipal Freedom of Information Act and that the City is
obliged to produce it. In addition to the statutory obligation to produce,
there are also other important policy reasons why the ARIS index should be
available to all requesters.
- 2 -
Section 2(1) of the Act defines record as:
"record" means any record of information however recorded, whether
(a) correspondence, a memorandum, a book, a plan, a map, a
(b) subject to the regulations, any record that is capable of being
Ontario Regulation 823/90 provides that:
(1) A record capable of being produced from machine readable
Caselaw exists regarding the proper interpretation of section 2(1), "record"
and Ontario Regulation 823/90.
In this case, the Manitoba court considered the definition of a record in the
Manitoba Freedom of Information Act, whose definition of a record is
somewhat similar, and if anything, is not quite as broad as the applicable
Ontario legislation. For example, it does not contain anything similar to
section 2(1)(b) re records that are capable of being produced from a
machine readable record. The court held that the word "record" was
broadly defined in the Act, and that essentially
any recorded information is a record within the meaning assigned to that
word by the Act. The court another said that every person has a right of
access to any record in the custody or under the control of a department of
the government, subject to the exemptions. In terms of the exemptions the
court stated that:
"The sections in the Act providing for exemptions must be strictly
Therefore any "recorded information" constitutes a "record" and therefore
must be provided, unless the request comes within one of the exemption
sections. In this case there are no exemption sections that would preclude
provision of the ARIS index.
This Order dealt with the provincial Freedom of Information Act, whose
definition of record is the same as the Municipal Freedom of Information
Act. The Order involved a request for various information that could be
categorized as follows:
1. Information that was stored in the Ministry's computer database but the
specific report requested had not been generated.
2. Information which was stored in the Ministry's database but a program
would have to be developed to generate the requested record.
3. Information which was in manual format and would have to be compiled.
The institution's response was to provide the requester with fee estimates
for providing the information. Their position was that none of the requested
records currently exist and that the Act did not impose any obligation on
them to create such records. That being the case, the institution argued
that the Commission could not review their fees. The Commission thus
looked at the issue of what duty is imposed on an institution when it
receives a request for information which exists in some recorded format
within the institution but not in the format asked for by the requester.
According to Commissioner Linden, the definition of "record" in section 2(1)
of the Act encompasses two types of recorded information. The first, under
paragraph (a), is material which currently exists in some physical form. The
second, under 'paragraph (b), is a record which does not currently exist but
is "...capable of being produced from a machine readable record...". It was
Commissioner Linden's view that the duty of the institution differs according
to which part of the definition of record applies.
Where the request is for information that currently exists in some physical
form, but in a format different from that requested, the institution has a
duty, under section 24, to identify and advise the requester of the existence
of those records. However the institution is not required to organize this
material into the format requested. The requester has a right to the "raw
material", which they can then organize themselves.
However where the request is for information that is capable of being
produced from a machine readable record, the Act requires the institution
to create this type of record, subject to the regulations. This is where
Regulation 823/90 comes into play, which provides that the institution does
not have to produce the record if it would unreasonably interfere with the
operations of the institution. According to Commissioner Linden, what
constitutes an "unreasonable interference" is a matter which must be
considered on a case-by-case basis. Commissioner Linden's conclusion
"subject to the regulation, the Act does place an obligation on an
It is our submission that Mr. Barber is requesting information that can be
produced from an existing machine readable record, and therefore the City
has a duty to produce it, in the requested format. The only question is
whether the City is excused from this duty because it would unreasonably
interfere with the operation of the institution. However it is reasonable to
expect that an institution would have some index method for keeping track
of their records. In fact the notice of appeal makes note that "ARIS" is an
acronym for the computer system index the city uses to control its records.
Given that the city already has a computer index system, it is difficult to see
how this request would unreasonably interfere with the operation of the
The Notice of Appeal does say that the City took three hours to produce a
one page document with a list of all the files contained within the requested
ARIS index file number. However it
says that the City produced this from the raw data. If by "raw data" they
mean they could not generate the report by computer, then they still have
an obligation to release the raw data to Mr. Barber. If on the other hand,
they had to create a program to generate the report, once this program is
created, the processing time should in theory significantly decrease.
Furthermore, Mr. Barber has indicated that at one point in his search for
records, a staff member showed him a binder which contained ARIS
printouts listing all the files in that office. Mr. Barber was not allowed to see
the printouts but the staff member explained the system to him. Therefore it
appears that the City already does generate the type of report that Mr.
Barber is looking for. If they already generate such a report, compliance
with his request clearly would not unreasonably interfere with the operation
This Order also considered the definition of "record" under the Municipal
Freedom of Information Act. In this case the requester was seeking access
to a computerized file of a report on race relations. The Commissioner held
that "files in a hard disk drive constitute a machine readable record in the
sense contemplated by section 2 of the Act. A copy of those files on
diskette is also a record that is capable of being produced from a machine
readable record." Therefore if the index exists on the City's hard drive, or is
capable of being generated, then it seems the City would have to produce
it, subject only to Ontario Regulation 823/90.
Several orders which have dealt with "indexes" to be produced. Although
neither was identical to the index which Mr Barber is requesting, it is
relevant to note that institutions have produced other types of indexes.
In ORDER P-231, MINISTRY OF NATURAL RESOURCES, it was noted that
the institution in question provided a complete and up to date index of all
the decisions that the Mines & Lands Commissioner's department has dealt
with since 1973 in regards to appeals under the Conservation Authorities
Act, Section 27, part 2c.
In ORDER P-880, MINISTRY OF ATTORNEY GENERAL the Inquiry Officer
discussed practices, established by the Commissioner's office, for
government institutions which are designed to give requesters as much
information as possible about disputed records without disclosing their
contents. The example given was that institutions, based on the
Commissioner's office interpretation of section 29(1)(b) (of the Provincial
Freedom of Information Act, which is section 22(1)(b) of the Municipal
Freedom of Information Act), are required to provide an index of records to
requesters to whom they deny access. The index is to provide a general
description of the records along with the exemptions claimed and reasons
why the records are not being released. Therefore it seems that
institutions can, and are required to, provide "indexes" of some sort or
We note that the City relies on Section 25(b) of the Act, which requires that
it make available a list of the general classes or types of records in the
custody or control of the institution; The City argues that having done so, it
is not required to provide the further information requested by Mr. Barber.
We submit that such an interpretation of Section 25 would defeat the entire
purpose of the Municipal Freedom of Information Act. That requirement in
Section 25 occurs in the context of other requirements in the Section,
clearly designed to provide the public with initial basic information from
which potential requesters can formulate requests, and forward them to
the proper individual for response. The list required by Section 25(b) is
meant to assist the public, not to act as a barrier to further, more detailed
information disclosure. It provides a general introduction to records within
the institution, not a complete listing of what is available on any specific
subject. The broad purpose section of the Act, the broad definition of
"record" in the Act, and the Orders cited above all support the conclusion
that the City's attempted reliance on Section 25(b) to deny access is
improper and contrary to the Act.
In this Order, Commissioner Linden dealt with the creation of a record. The
institution claimed that, in the absence of a record relating to the request, it
had no legal obligation to "create a record." Commissioner Linden made
note of the fact that while institutions are not obliged to create a record, in
some circumstances the creation of a record is not only consistent with the
spirit of the Act but also enhances one of the major purposes of the act,
that is "to provide a right
of access to information under the control of the institutions."
[Section 1 (a)] He considered that the institution's handling of the requests
was not in keeping with the spirit of the Act.
In Mr. Barber's case, it appears that the ARIS index already exists, therefore
the City would not be "creating" a record. Furthermore Commissioner
Linden, in Order 50, stated that an institution is required to "create" a
record where it is capable of being produced from a machine readable
record. In the alternative, even if it is found that the City does not have an
obligation to "create" the record for Mr. Barber, we urge that they do so in
keeping with the spirit and purposes of the Act.
Aside from the City's obligation to produce a "record", there are other
persuasive reasons why it should produce the ARIS index for not only Mr.
Barber, but also future requesters.
First, there are the current requirements regarding burden of proof on the
parties when they dispute whether a record exists. In ORDER M-500
TORONTO BOARD OF EDUCATION, Inquiry Officer Jiwan noted that the
institution has to provide sufficient evidence to show that is has made a
reasonable effort to identify and locate records responsive to the request.
If an institution asserts that no further records exist, it bears the burden of
proving its position, although it does not have to prove with absolute
certainty that the records do not exist. It seems that the ARIS index would
be an important piece of evidence in this regard. It would make it
easier for the institution to show both its efforts and that the record does
not exist, and it would be easier for the Commissioner to decide whether the
institution's efforts were in fact reasonable.
Furthermore, the index would also be of immense help to a requester.
Inquiry Officer Jiwan, in the same Order, stated that sections 36(1) and 37
of the Act place some obligation on the requester to provide as much
direction to the Board as possible as to where the records that he is
requesting may be located and/or to describe the records sought.
The relevant sections are:
s36.-(1) Every individual has a right of access to,
(a) any personal information about the individual contained in a
(b) any other personal information about the individual in the custody or
s37.-(1) An individual seeking access to personal information about the
These sections deal with personal information, which is not what Mr. Barber
is seeking; however they are relevant to the issue of the usefulness of the
ARIS index. The index would be of great help to a person who is under an
obligation, under these sections, to provide the information. Without the
index, a person may have a more difficult time in providing the necessary
information, and therefore may not be able to obtain the information they
Furthermore, the proposed amendments to the Municipal Freedom of
Information Act, through Bill 26, place an even greater burden on the
requester. Schedule K, section 20, amends section 39 of the Act by adding
a section that allows the Commissioner to dismiss an appeal if the notice of
appeal does not present a reasonable basis for concluding that the record
or the personal information to which the notice relates exists. Without this
ARIS index it may be very difficult for the requester to provide enough
evidence to show that the record exists. Given that the proposed
amendments will make it harder for a person to obtain information, an index
such as the one Mr. Barber is requesting seems essential and in keeping
with the purposes of the Act.
The ARIS index is also important with regards to the issue of the fees
charged to the requester. Under the current Act, access to the public, the
overall purpose of the Act, is improved when the information can be
generated at the least possible cost; access to an index facilitates lower
The issue of fees will become even more important under proposed
changes to the Act in Schedule K, section 23 of Bill 26, which provides that
fees will be required for, among other things, the costs of every hour of
manual search required to locate a record. While a requester will also likely
be charged a fee if the city has to generate a computer report, it is
reasonable to expect that the fee would be much lower than a fee for hours
of manual searching. This way a report can be generated and then the
requester can do his/her own search for the records, and pinpoint the
exact location, thereby eliminating the manual search fees. It would also
benefit the institution by saving them many hours of manpower.
We submit that given the both the Courts' and the Commission's
interpretation of a "record", the City is required to produce the ARIS index
requested by Mr. Barber. It is information capable of being produced from
machine readable records and its production would not unreasonably
interfere with the operation of the institution. Production of the ARIS index
is also in keeping with the statutory purpose and spirit of the Act. This index
would be of help to both institutions and requesters alike.
Respectfully submitted, this 2nd day of January 1996.
[ COMMENTS BY DON B. -
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