“Reasonable effort” to locate a record

An interesting perspective was offered in a Windsor Star guest column on Saturday from a frustrated freedom of information requestor:

Windsor Star: Freedom of Information not much of a reality in Ontario

John Cryderman, Reader Letters, Published Feb 13, 2021

In 2016, Mr. Cryderman submitted a freedom of information request to the Municipality of Chatham-Kent seeking information about a recently-tabled proposal to create a publicly-owned ambulance service.

The request was initially refused. Mr. Cryderman appealed the refusal to the Information and Privacy Commissioner of Ontario (IPCO). According to Mr. Cryderman, Chatham-Kent “argued against disclosure based on 20 separate grounds related to confidentiality exemptions under the Act“. Based on this fulsome defense, Mr. Cryderman “surmised the municipality had something to hide.”

IPCO ruled that Chatham-Kent must respond to Mr. Cryderman’s request. In response, the municipality provided him with a “one-page spreadsheet with unsupported totals” which had previously been produced in council.

Mr. Cryderman initiated additional appeals seeking more responsive documentation, but to no avail. As described by Mr. Cryderman:

In response, C-K presented an affidavit, sworn by its Information Officer, indicating that it had completed an exhaustive search — based on its own interpretation of possible document sources. The IPC held that the Officer’s affidavit met the standard of reasonable search and my appeal was denied.

In 2020, I applied for a reconsideration of the appeal and the IPC ruled against me again.

Four years had passed since my first request and I was no further ahead. I felt like a caged hamster running on a wheel.

Mr. Cryderman came away from the experience with a critical view of Ontario’s FOI legislation, specifically the requirement that an institution make a “reasonable effort” to locate a record. In his words:

A reasonable effort is not a thorough or complete effort. Based on the standard of reasonable effort, an institution could conceivably evade its duty to disclose a record if it were difficult to locate, had been stored in an inconvenient place or had simply been hidden.

I recommend reading the original column in full. My takeaway, for provincial and municipal institutions in Ontario, is that institutions should be aware of their obligation to undertake a “reasonable effort” to locate responsive records under s.24 of the Freedom Of Information And Protection Of Privacy Act and s.17 of the Municipal Freedom Of Information And Protection Of Privacy Act. This does not always impose an obligation to conduct an “exhaustive search”; for example, see Order MO-2926 (City of Ottawa) decided July 30, 2013.

I would add that in appeals, institutions frequently assert that they have conducted an “exhaustive search” for responsive records, or that they intend to do so. This may be above and beyond the institution’s duty under the Acts, at least in certain circumstances. Arguably, it may even represent an inappropriately high search standard, which could potentially lead to a decision against the institution in an appeal of a fee or fee estimate.

With the new FOI AssistTM software, Ontario’s provincial and municipal institutions can process and respond to Freedom Of Information requests quickly, easily, and in full compliance with applicable legislation and guidance. Read the release announcement.

To receive guidance and tips on processing FOI requests, as well as up-to-date information about the FOI Assist software, please follow the FOI Assist website. Simply enter your email address at the bottom of the page then click the follow button.

Links to Resources:

Windsor Star: Freedom of Information not much of a reality in Ontario John Cryderman, Reader Letters, Published Feb 13, 2021

IPCO Order MO-2926 (City of Ottawa) decided July 30, 2013 https://decisions.ipc.on.ca/ipc-cipvp/orders/en/item/134211/index.do

Published by Justin Petrillo

I am creating FOI Assist™ software to help Ontario’s provincial and municipal government institutions of all sizes track and respond to Freedom of Information (FOI) requests. For most of my career I have been a lawyer, advising clients on commercial, intellectual property and FOI/privacy issues. From 2013 to 2015, I managed the FOI program for the Toronto 2015 Pan/Parapan Am Games Organizing Committee while serving as Legal Counsel to the Games. Prior to becoming a lawyer, I obtained a computer science degree and worked as a software developer at several well-known technology companies.

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