Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 160-1997
April 23, 1997
INQUIRY RE: The adequacy of the Ministry of Attorney General's search for
records requested by an applicant
Fourth Floor
1675 Douglas Street
Victoria, B.C. V8V 1X4
Telephone: 250-387-5629
Facsimile: 250-387-1696
Web Site: http://www.oipc.bc.ca
1. Description of the review
As Information and Privacy Commissioner, I conducted a written inquiry at the
Office of the Information and Privacy Commissioner (the Office) on February 10,
1997 under section 56 of the Freedom of Information and Protection of
Privacy Act (the Act). This inquiry arose out of a request for review
concerning the response by the Ministry of Attorney General to a request for
records. The applicant believes that there are more records in the custody and
control of the Ministry than have been disclosed to him.
2. Documentation of the inquiry process and the records in dispute
On October 2, 1996 the applicant sent a request to the Ministry of
Attorney General seeking "records between the Ministry of Labour and the
Industrial Relations Council and the Ministry of Labour and the Ministry of
Health in relation to a labour dispute and contract negotiations and essential
services between March 1989 and June of 1989 for Whitelodge Rest Home, Maple
Ridge."
The Ministry of Attorney General responded to the applicant's request on
October 22, 1996 by stating that "....the Information and Privacy Program has
consulted with the Civil Litigation office [of the Ministry of Attorney
General] and confirmed that all records residing in their office related to the
Whitelodge Rest Home in Maple Ridge have been provided to [the applicant's]
lawyer. No other records exist within the Ministry of Attorney General."
The applicant requested a review of the Ministry of Attorney General's
decision on November 5, 1996. During the mediation process, the Ministry
conducted additional searches for the requested records. The Ministry
subsequently confirmed that it had disclosed all records in the civil
litigation file to the applicant and that there are no other relevant records
in the custody, or under the control, of the Ministry.
On January 20, 1997 my Office gave notice to the applicant and the Ministry of
the written inquiry to be held on February 10, 1997.
3. Issue under review at the inquiry
The issue under review in this inquiry is whether the Ministry of
Attorney General conducted an adequate search for the records that the
applicant requested. The relevant section of the Act is as follows:
Duty to assist applicants
6(1) The head of a public body must make every reasonable effort to assist applicants and to respond without delay to each applicant openly, accurately and completely.
Section 57 of the Act establishes the burden of proof on the parties to an
inquiry about a decision to refuse access. It is silent with respect to
section 6 and the issue of adequate search. Since public bodies are in a
better position to address the issue of adequate search, I have determined in
previous Orders that the burden of proof under this section is on the public
body. (See Order No. 149-1997, January 31, 1997, p. 2; Order No. 138-1996,
December 18, 1996, p. 2; Order No. 127-1996, September 24, 1996, p. 3)
4. The Ministry of the Attorney General's case
The Ministry's position is that it has provided the applicant's lawyer
with all of the relevant records through the litigation process, with the
exception of those subject to solicitor-client privilege. (Submission of the
Ministry, paragraphs 1.05; 4.06) The Ministry states that all responsive
records were in the appropriate litigation file. (Submissions of the Ministry,
paragraph 1.07) In its most recent search, it relied on the applicant's letter
of November 5, 1996, which included a detailed list of what he is seeking. I
agree with the Ministry that it is only required "to show that it has made
every reasonable effort to identify the records responsive to the requests."
(Submission of the Ministry, paragraphs 4.04; 4.08, 4.09) (See Order No. 30-1995,
January 12, 1995, p. 11)
I appreciate the fact that the Information and Privacy Program of the
Ministry, in order to assist the applicant, contacted the B.C. Council of Human
Rights and the Office of the Public Trustee to search for files that might
relate to the applicant's request. (Submission of the Ministry, paragraphs
4.10 and 4.11) An officer of the same Program also reviewed the records
identified as "irrelevant" in the Ministry's litigation file and found none
that fell within the scope of the applicant's request of October 2, 1996.
(Affidavit of Janice Evans, paragraphs 7 - 9)
The Ministry states that under Rule 26 of the Rules of Court it was
obliged to list for the applicant all documents which are or have been in its
possession or control relating to any matter in question in the action. It did
so because the applicant has a current civil action against the Crown and
various named employees of the Crown. It did not list records irrelevant to
the matters in question. The documentation included a listing and description
of 716 documents which are available for the applicant's inspection and
copying. (Submission of the Ministry, paragraphs 4.12 - 4.18)
5. The applicant's case
Since the applicant did not make a submission to this inquiry, I have
relied on his original request for review of November 5, 1996. His view is
that the various lists of documents filed by the Crown under the Rules of
Court are "certainly not complete." He attached a list of documents that
he is seeking, which, as noted above, the Ministry used in additional searches
for relevant records.
6. Discussion
The Ministry submits that it has made every reasonable effort to search
for the records requested by the applicant. It is also of the view that what
it has disclosed to him through the litigation process, which it compares to a
"routine channel," satisfies the demands of section 2(2) of the Act. (See
Order No. 86-1996, February 27, 1996, p.3)
Although the applicant has a residual right to seek the same records under the
Act, I fully agree with the Ministry that no useful purpose would be served by
such a duplicative process of disclosure, in the present inquiry, beyond
placing an unnecessary burden on the taxpayers. (Submission of the Ministry,
paragraphs 4.19 to 4.22) (See Order No. 119-1996, August 29, 1996, p. 3)
Public bodies are not required to provide the records again under the Act, if
the same records have already been disclosed to the same applicant through
another process. The public body must be able to demonstrate that the
requested records have already been made available, and that no other records
are responsive to the request. In some cases, I realize that it may be simpler
for a public body to give out the records a second time.
7.
Order
Section 58(1) of the Act requires me to dispose of the issues in an inquiry by
making an order under this section. I find that the search conducted by the
Ministry of Attorney General in this case was a reasonable effort within the
meaning of section 6(1).
Under section 58(3)(a), I require the Ministry of Attorney General to perform
its duty under section 6(1) to make every reasonable effort to assist the
applicant. However, since I have found that the search conducted was
reasonable, I find that the Ministry of Attorney General has complied with this
Order and discharged its duty under section 6(1) of the Act.
April 23, 1997
David H. Flaherty
Commissioner