Reasonable Search Affirmed

The Freedom of Information and Protection of Privacy Act (“FIPPA”) and the Municipal Freedom of Information and Protection of Privacy Act (“MFIPPA”) grant the public a right of access to every record in the custody or under the control of an institution unless a statutory exemption applies. When a requestor makes a request to an institution for records matching a certain description, the institution must issue an access decision with respect to the records it identifies in its search. If the requestor is not satisfied with the results of the search and believes additional records exist beyond those identified by the institution, the requestor may appeal the institution’s disclosure decision to the Information and Privacy Commissioner of Ontario (“IPCO”).

Although institutions are expected to make a genuine effort to locate all records responsive to a request, institutions are not required to prove with absolute certainty that no responsive records (or no additional responsive records) exist in response to an access request. Under both FIPPA and MFIPPA, it is sufficient for an institution to provide evidence that a “reasonable search” was conducted to identify and locate the records responsive to the request.

Why “reasonable search” matters

Under FIPPA and MFIPPA, requestors are entitled to a search that is reasonable in the circumstances. They have no right to demand an exhaustive hunt for every record that might possibly exist.

Only a “reasonable” search is required, not an “exhaustive” one

The term reasonable is often described as meaning “fair and proportionate in the circumstances.”

In the context of a freedom of information request, a reasonable search is one in which “an experienced employee, knowledgeable in the subject matter of the request, expends a reasonable effort to locate records which are reasonably related to the request.” (This formation of “reasonable search” comes from IPCO Order PO-4383, citing Orders M-909, PO-2469 and PO-2592.)

In IPCO Order PO-1943, the requestor submitted a broad request to Ministry of Training, Colleges and Universities for records relating to numerous budgetary, financial and governance topics. IPCO Adjudicator Laurel Cropley described an institution’s reasonable search obligations as follows:

[T]he search which an institution undertakes must be conducted by knowledgeable staff in locations where the records in question might reasonably be located… [T]he Act contemplates that searches for responsive records will be conducted by reasonably informed staff. Further, the Act contemplates that records will be maintained in accordance with some regularized and managed system so that a reasonably informed or knowledgeable staff member will be able, upon a reasonable effort, to locate those that are responsive to the request.

IPCO Order PO-1943

In contrast, an exhaustive search would mean “leaving no stone unturned.” However, when performing a search in response to an access request under FIPPA or MFIPPA, an exhaustive search is not required. Courts and IPCO have repeatedly confirmed that institutions are not responsible for perfect retrieval—only of making a reasonable effort.

Why does IPCO make this distinction?

Why does IPCO limit the requestor’s right to records in this matter? Theoretically, if a record exists and does not fall under a statutory exemption, shouldn’t the requestor have the right to access the record?

As a practical matter, the potential universe of records (including deleted or off‑site copies) is virtually endless. Further, both FIPPA and MFIPPA contemplate that a typical FOI request should receive a response within 30 days, with limited recourse for delays or time extensions. IPCO does not require an exhaustive search because IPCO understands that government resources are finite and that the public interest is best served when institutions search intelligently, document their efforts, and then disclose promptly, rather than chasing vanishingly remote possibilities.

Divisional Court affirms Reasonable Search

The Divisional Court of Ontario recently upheld an IPCO decision (and its reconsideration order) addressing the obligations of institutions to conduct a reasonable search. The resulting decisions (IPCO Order PO-4383, IPCO Order PO-4404-R and 2024 ONSC 5049 (Ont. Div. Ct.), stand as useful and authoritative precedents on the requirements of a reasonable search and the evidentiary burden an institution must be prepared to meet in order to establish to the satisfaction of IPCO that a reasonable search was performed.

The Original Decision: PO-4383

In Order PO-4383, the requestor sought “all documents, correspondence, and policies relating to Seneca College’s participation in the Smart Commute ridesharing initiative”. The college located hundreds of responsive records, including emails, purchase records, and multiple drafts of contracts, but the requestor insisted that further records—particularly drafts and internal messages—must exist.

The college submitted that it conducted a “comprehensive” search for records responsive to the access request involving several departments and experienced employees who were knowledgeable in the subject matter of the request. As evidence, the college provided IPCO with an affidavit sworn by its Privacy Officer which detailed the search process. The Privacy Officer’s responsibilities included responding to access requests under FIPPA.

The college’s search process was described in the decision as follows:

[95] Following receipt of the access request, the Privacy Officer met with a staff member of the Academic Learning Services department, who advised that she had knowledge of and access to the department’s records relating to Smart Commute. The Privacy Officer also contacted the Manager of Campus Services, the Senior Procurement Specialist of Procurement, and the Director of Information Technology Services and requested that they identify any other college employees or departments that may have records related to the request.

[96] The Privacy Officer then sought and received clarification of the access request from the appellant’s then legal counsel, and forwarded this information to the departments identified above, as well as the Senior Manager of Organizational Compliance and the Assistant to the Board of Governors. All of these departments conducted searches for records responsive to the request.

[97] The Privacy Officer subsequently received approximately 325 records from the various departments, with the exception of the Board of Governors, who had not located records responsive to the request.

[98] The Assistant to the Board of Governors advised the Privacy Officer that she had reviewed Board and Committee Academic Planning, Student Affairs, and Finance and Administration meeting minutes, as well as annual reports for any references to ride sharing/carpooling applications. The Assistant advised the Privacy Officer that the search terms “RideShark,” “Rideshare” and “Smart Commute” had been used in the searches.

IPCO Order PO-4383

Despite this evidence, the appellant (the requestor) took the position that the college did not conduct a reasonable search for records:

[99] … The appellant submits that separate affidavits should have been provided by each staff member who conducted searches for records. In addition, the appellant submits that the college’s decision letter leads him to believe that it narrowed the scope of his request to extent that it claimed no records exist in response to part of his request, which is “impossible.” The appellant states:

[100] The discrepancy in the way the sentence was laid out, as opposed to the original request, changes the demand’s interpretation which in turn can easily lead to the derailment of the original request to that of something completely different. It also falls under the bracket of having limited the scope of the requesters request without him being aware of it or providing him with an explanation for it.

IPCO Order PO-4383

On the evidence before her, IPCO Adjudicator Cathy Hamilton found that the college did in fact conduct a reasonable search for records responsive to the appellant’s access request. Adjudicator Hamilton rejected the appellant’s allegation that the college unilaterally narrowed the scope of the request, finding instead that the college had sufficient evidence to establish that it contacted the appellant’s legal counsel to seek clarification of the request, resulting in revised request wording which the college then used as the basis for its records search.

Further, the Adjudicator found that college conducted searches in its record holdings in the Academic Learning Services department, the Campus Services department, the Procurement department, the Information Technology department, the Organizational Compliance department and the Board of Governors, and accepted the college’s evidence that the searches were conducted by several experienced employees who are knowledgeable in the subject matter of the request.

Adjudicator Hamilton summarized her adjudication and findings as follows:

[104] The Act does not require the college to prove with absolute certainty that further records do not exist. However, the college must provide sufficient evidence to show that it has made a reasonable effort to identify and locate responsive records. In this case, I find that at least six employees knowledgeable in the subject matter of the request expended a reasonable effort to locate approximately 325 records that were responsive to the request. I also find that it was sufficient for the college to provide its evidence to the IPC by way of one affidavit sworn by the college’s Privacy Officer on its behalf, as opposed to the appellant’s position which is that each staff member who conducted searches should have sworn separate affidavits and provided them to the IPC.

[105] As a result, I find that the college has made a reasonable effort to identify and locate responsive records and I uphold its search for records as being reasonable.

IPCO Order PO-4383

The Reconsideration Order: PO-4404-R

Following the initial decision, the appellant (the requestor) submitted a reconsideration request to IPCO solely on the issue of the college’s search for records. In particular, the appellant took the position that it was improper for IPCO to allow the college to submit a single affidavit sworn by the college’s Privacy Officer on behalf of the staff members who performed the search. Rather, the appellant believed that each staff member who conducted the search should be required to provide a signed and sworn affidavit of their own to IPCO.

In her reconsideration of the matter, Adjudicator Hamilton was not persuaded that relying on the Privacy Officer’s affidavit as evidence of the college’s search for records, rather than requiring an affidavit from each college staff member who conducted the search, amounted to a fundamental defect in the adjudication process. Further, the issue did not rise to the level of a breach of the rules of natural justice respecting procedural fairness, nor did it constitute a fundamental defect in the adjudication process.

The appellant’s request for reconsideration Order PO-4383 was therefore denied, and the original decision stood.

The Judicial Review: 2024 ONSC 5049

The requestor (now referred to as the “applicant”) then applied for judicial review of the two IPCO decisions above, arguing that “by accepting the affidavit evidence of the college’s Privacy Officer on the issue of whether the College conducted a reasonable search for responsive records, the Adjudicator committed an error of law, exercised her discretion in bad faith, failed to take statutory requirements into account, and breached the rules of natural justice and procedural fairness.”

A three-judge panel of the Divisional Court unanimously rejected the requestor’s argument.

In a now frequently-cited paragraph of the decision, Youbi-Misaac v. Information and Privacy Commissioner of Ontario, 2024 ONSC 5049 (Ont. Div. Ct.), the Court found:

As the Adjudicator correctly observed, FIPPA does not require the institution to prove with absolute certainty that records, or additional records, do not exist – to discharge its statutory obligations, the institution must provide sufficient evidence to show that it has made a reasonable effort to identify and locate any records that are responsive to the request.

2024 ONSC 5049, para. 9

The Court found that the IPCO Adjudicator applied “established and well-reasoned principles” to assess the reasonableness of the College’s search:

[11] … The affidavit evidence before the Adjudicator addressed in detail the relevant experience of the employees who conducted the searches for responsive records, the criteria for and the parameters of those searches, and the areas searched. The Adjudicator’s review of the evidence and the law and her findings are consistent with rulings of this Court upholding the IPC’s decisions on reasonable search.

[12] The Adjudicator was entitled to find the College had provided sufficient evidence to establish that reasonable searches were conducted for responsive records. Based on the evidence before her, the Adjudicator found that “at least six employees knowledgeable in the subject matter of the request expended a reasonable effort to locate approximately 325 records that were responsive to the request.” The Adjudicator specifically addressed and ultimately rejected the applicant’s position that each staff member who conducted searches should have sworn separate affidavits. The Privacy Officer’s affidavit was detailed and comprehensive. The Privacy Officer coordinated the search for records. Her affidavit outlined the departments and employees the Privacy Officer identified to assist with the search for responsive records, the employees she met with, the dates of the meetings, the instructions she provided on the scope of the searches, her discussions with various employees, and the records she received from the employees after conducting the searches. Copies of the notices and emails she exchanged during the search for records were attached to the affidavit.

[13] The Adjudicator’s conclusion that the College had conducted a reasonable search for responsive records was reasonable.

2024 ONSC 5049

Further, the Court found it was reasonable to rely solely on the affidavit of the college’s Privacy Officer as evidence, noting “the Privacy Officer was involved in responding to the applicant’s request for records, coordinated the steps taken in the College’s search effort, and was in a position to explain the scope of the search based on her own knowledge of responding to requests and her belief of the steps taken and by whom in the search for records in this case.” The Adjudicator was fully within her scope of authority to accept the person the College chose to provide evidence of the search, and to accept a single affidavit as evidence rather than requiring separate affidavits from every person involved in the search.

Conclusion

The “reasonable search” standard is an essential concept in Ontario’s Freedom of Information framework. Institutions must be prepared to explain their search process in a way that is transparent, well-documented, and grounded in a fair understanding of where responsive records are likely to be located. But they are not required to conduct a “perfect” or “exhaustive” search, nor are institutions required to provide separate affidavits from every individual involved in the search process if the reasonableness of the search is challenged in an appeal.

With this decision, the Divisional Court has firmly endorsed IPCO’s long-standing approach, giving institutions and requestors alike much-needed clarity and certainty.

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