Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 207-1997
December 23, 1997
INQUIRY RE: The adequacy of the Ministry of Attorney General's search for
records
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 September
18, 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 from
the applicant of a decision by the Ministry of Attorney General, Information
and Privacy Program (the Ministry), that no records exist that would respond to
the applicant's request.
2. Documentation of the inquiry process
On March 20, 1997 the applicant requested records from the Ministry of
Attorney General, Information and Privacy Program. The request was for copies
of records sent by facsimile from the Ministry's Legal Services Branch to the
lawyer for the Office of the Information and Privacy Commissioner in 1995.
These records related to litigation involving the applicant and the Government
of British Columbia, including a decision by the British Columbia Supreme Court
that the applicant not bring further court proceedings against the former
Ministry of Social Services without special leave of a judge of the Supreme
Court.
The Ministry responded to the applicant's request on April 10, 1997, with
further clarification on April 21, 1997. The Ministry told the applicant that
no responsive records exist. The applicant requested a review of the
Ministry's decision on April 25, 1997.
The applicant requested a similar set of records from the Office of the
Information and Privacy Commissioner. The Office located responsive records in
its files, waived solicitor-client privilege for a number of them, and
disclosed them to the applicant on May 1, 1997. Thus the applicant received
some of the requested records from a different source.
On June 10, 1997 the applicant requested an inquiry by the Information and
Privacy Commissioner to review the Ministry's decision that no responsive
records are in the custody or under the control of the Ministry. On July 2,
1997 the Office gave notice to the applicant and the Ministry of the written
inquiry to be held on July 24, 1997. By consent of the parties, the written
inquiry was rescheduled to September 18, 1997.
3. Issue under review and the burden of proof
The issue to be reviewed by the Information and Privacy Commissioner is the
adequacy of the Ministry of Attorney General's search for records that respond
to the applicant's request of March 20, 1997.
Section 57 of the Act establishes the burden of proof on the parties in this
inquiry. Section 57 is silent with respect to a request for review about the
issue of adequate search. I decided in Order No. 103-1996, May 23, 1996, that
the burden of proof in such cases is on the public body.
4. The records in dispute
The applicant requested copies of records sent by facsimile as well as other
communications from the Ministry's Legal Services Branch to the lawyer for the
Office of the Information and Privacy Commissioner in 1995. These records
related to litigation involving the applicant and the Government of British
Columbia.
5. Procedural objections
The applicant objected to various aspects of the review of the Ministry's
response to his access request, including the perceived lack of response to his
wish that someone from outside my Office be delegated under section 49 to
investigate various associated issues. He also objected to various perceived
inaccuracies in the Portfolio Officer's Fact Report, all of which I have
considered. He objected to the timetable for submissions in this inquiry but
was advised by my Office that he could formally request a time extension after
reviewing the Ministry's submissions.
The applicant also objected to decisions taken by my Office in response to his
allegations about violations of the Act by the Attorney General and a member of
his staff and, on the basis that I am in a conflict of interest as a party to
those objections, stated his belief that this inquiry should be conducted by a
justice of the Supreme Court. I have addressed these sorts of allegations
before, especially in Order No. 119-1996, August 29,1996; Order No. 134-1996,
December 9, 1996; and Order No. 163-1997, May 14, 1997. My Office is the only
forum for a review of a decision of a public body under the Act.
6. The applicant's case
The applicant essentially submits that he should have access to certain
records from the Ministry, as described above. Implicitly, he seems to be
arguing that the Ministry did not carry out a reasonable search to locate what
he wants.
7. The Ministry of Attorney General's case
The Ministry's submission documents the fact that it has explained to
the applicant why the records he is seeking do not exist. (Submission of the
Ministry, paragraphs 1.04, 1.07) The Ministry has also provided me, and the
applicant, with a very detailed description of its search efforts to find
responsive records. (Submission of the Ministry, paragraphs, 4.05 to 4.09)
The Ministry further submits:
... the Public Body has conducted a thorough and comprehensive search, making
efforts that fair and rational people would expect to be made and would find
acceptable.... The Public Body is confident that no records within its custody
or control exist which are responsive to the Applicant's request... Given that
the Applicant has received records from the Office of the Information and
Privacy Commissioner, the Public Body has every reason to believe that the
Applicant is not using the Act for the purposes for which it was intended and
that he is not acting in good faith. (Submission of the Ministry paragraph,
4.10)
9.
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.
December 23, 1997
David H. Flaherty
Commissioner