Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 86-1996
February 27, 1996
INQUIRY RE: A decision by the Ministry of Social Services that a request
for personal information did not fall within the scope of the Freedom of
Information and Protection of Privacy Act
Fourth Floor
1675 Douglas Street
Victoria, B.C. V8V 1X4
Telephone: 604-387-5629
Facsimile: 604-387-1696
Web Site: http://www.cafe.net/gvc/foi
1. Description of the review
As Information and Privacy Commissioner, I conducted a written inquiry at the
Office of the Information and Privacy Commissioner in Victoria on November 28,
1995 under section 56 of the Freedom of Information and Protection of
Privacy Act (the Act). This inquiry arose out of two requests for review,
dated September 1, 1995 and September 2, 1995, concerning the Ministry of
Social Services' decision to refuse access on the basis that the original
requests for access to records were outside the scope of the Act.
On August 11, 1995 the applicant asked the Ministry for a copy of both sides
of a cancelled cheque payable to his place of residence. In addition, the
applicant requested on August 12, 1995 the most recent letters and memos
between himself and the Ministry, miscellaneous notes, inter-office memos
concerning himself, and the instructions from the Information and Privacy
Division of the Ministry. These records were to include documentation about
the applicant from the Regional Director, the Area Manager, and the local
office including the District Supervisor and other staff. These records are in
the custody of the Ministry of Social Services.
2. Issue under review at the inquiry
The issue under review in this inquiry is whether the Ministry's decision that
the records requested were available through a routine procedure and thus,
under section 2 of the Act, did not fall within its scope.
Section 2 reads in part as follows:
2(1) The purposes of this Act are to make public bodies more accountable to the
public and to protect personal privacy by
(b) giving individuals a right of access to, and a right to request correction
of, personal information about themselves,
....
3. Burden of proof
As the Act is silent on the burden of proof with respect to this issue, and
the applicant is alleging that the Ministry is refusing him access to the
records requested, the Ministry has accepted the burden of proof for purposes
of this inquiry.
4. The applicant's case
On October 23, 1995 my Office wrote to the applicant to explain that,
at his direction, his request for a review of this matter would not be pursued.
On October 27 he replied, stating that I made a "false statement" both on this
occasion and in an affidavit my office filed in the Supreme Court of British
Columbia on another matter pertaining to the applicant.
In a subsequent letter the applicant accused me of failing to respond to his
letter of September 23, 1995: "Based on history this is not unusual for you."
He further claims that I am ignoring his communications, refusing to comply
"with the Law," and "appear to be proceeding on your [my] own without regard to
the Law."
Although the period for submissions in this inquiry was extended to allow the
applicant to make submissions, I have not seen the letter of September 23,
1995.
I infer that the applicant is not satisfied, for some unstated reason, with
the Ministry's plans to grant him routine access to his own personal records.
5. The Ministry's case
Due to past experience with this applicant, the Ministry has a standing
arrangement that he can review any of his files in person at one District
office and have any document of his choosing copied for him. The applicant has
also been provided with the specific information he requested. (Submission of
the Ministry, paragraphs 2.1 and 2.2; see also 5.2)
The problem is that the applicant believes that he has been denied access to
his records: "In this specific inquiry the Public Body will show that it has
in fact not denied access to the Applicant but has provided the best access
possible which is routine access at any time the Applicant desires."
(Submission of the Ministry, paragraph 3.2)
The Ministry submits that under section 2 of the Act the ideal kind of access
to records is routine access. This has happened in the present matter as a
responsive way of dealing with a demanding and persistent applicant.
(Submission of the Ministry, p. 6) In doing so, the Ministry claims that it
has complied with section 6 of the Act as well. The Ministry has so acted
because of its direct experience with this applicant and what it has learned
from an affidavit filed in the Supreme Court of British Columbia involving a
judicial review brought by the applicant against my Office. (Submission of the
Ministry, paragraphs 5.8 and 5.9)
6. Discussion
In my judgment, the Ministry has gone well beyond the call of duty in
attempting, on a continuing basis, to assist this applicant with his requests
for access to his own personal information held in Ministry files. It has even
arranged to have all of his records kept at a particular District office to
facilitate his access to his own material. The applicant simply has to call
and make an appointment. (Affidavit of Judy Forbister, paragraphs 6-8)
It might be arguable, under circumstances different from those of the present
applicant, that routine disclosure of information might deprive an applicant of
reliance on the full force of the Act. But since the Ministry will copy and
disclose to him any of his records that he wishes to see, it is hard to see
what his problem is. Promoting more and more routine disclosure of general and
personal records is one of the goals of my Office and of public bodies subject
to the Act. A major rationale is cost effectiveness, a goal that is very much
in the interests of taxpayers.
The applicant has not stated that he feels threatened or inconvenienced by
having to visit a District office. In the past, the Portfolio Officer
reviewing this case with the applicant has offered to go to the office in
question with him. My understanding of the standard security practice of the
Ministry is that applicants for information usually have to pick up the records
being disclosed at a Ministry office.
I am very concerned about the burgeoning costs to innumerable public bodies of
granting individuals access to their own personal records. Clerical and
copying charges are significant in this regard. I have been impressed by the
good faith efforts of public bodies, broadly defined, to comply with the goals
of the legislation in this regard. What I must also plead for, on their
behalf, is that individuals exercise their access rights responsibly. I do not
regard the present applicant as acting in that manner, such as when he
threatened the Ministry on September 14, 1994 that he would request updates
about his personal information every two weeks thereafter. (Affidavit of Judy
Forbister, paragraph 7)
7.
Order
I find that the Ministry of Social Services was authorized to refuse access
and has not, in fact, denied the applicant access to his own personal
information. Further, I find that the Ministry has correctly applied section 2
of the Act, and acted within the spirit and intention of the Act, in providing
the applicant with routine, ready access to his own personal information.
Under section 58(2)(b), I confirm the decision of the Ministry of Social
Services.
February 27, 1996
David H. Flaherty
Commissioner