The Canadian Environmental Law Association (CELA) Submission to Appeal - Inquiry M-9500118 Join the 2003 FOI Campaign 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: 2. SUBMISSION: 3. APPLICABLE STATUTE AND REGULATION: a. Marchand v. Manitoba [1990] 74 D.L.R. (4th) 186 b. Order 50 RE: MINISTRY OF LABOUR, Information and Privacy *** "We submit that this claim, on the part of the City, lacks credibility." *** c. ORDER M-369, MUNICIPALITY OF METROPOLITAN TORONTO d. ORDERS REGARDING PRODUCTION OF INDEXES e. ORDER 99 ONTARIO HUMAN RIGHTS COMMISSION 5. CONCLUSION 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 BY FAX January 2, 1996 Mr. Walter Richardson Dear Mr. Richardson: Re: Appeal of Donald Barber, No. M-9500118 Attached are our submissions on the appeal. Yours truly, CANADIAN ENVIRONMENTAL LAW ASSOCIATION Michelle Swenarchuk 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 Mississauga. 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 - 3. APPLICABLE STATUTE AND REGULATION: 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. a. Marchand v. Manitoba [1990] 74 D.L.R. (4th) 186 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. b. Order 50 RE: MINISTRY OF LABOUR, Information and Privacy 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 was that: "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 institution. 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 of the institution. We submit that this claim, on the part of the City, lacks credibility. c. ORDER M-369, MUNICIPALITY OF METROPOLITAN TORONTO 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. d. ORDERS REGARDING PRODUCTION OF INDEXES 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 another. 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. e. ORDER 99 ONTARIO HUMAN RIGHTS COMMISSION 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 are seeking. 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 cost searches. 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. Michelle Swenarchuk [ COMMENTS BY DON B. - ] |
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