Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 150-1997
February 13, 1997

INQUIRY RE: The adequacy of the Ministry of Municipal Affairs and Housing'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 January 21, 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 by an applicant concerning the response by the Ministry of Municipal Affairs and Housing (the Ministry) to three separate access requests. The applicant believes that there are more records in the custody and control of the Ministry that have not been released to him.

2. Documentation of the inquiry process

The applicant made three separate requests, two on September 3, 1996 and one on September 4, 1996, for records regarding the hiring of two different Ministry employees. The first request pertained to the hiring of one employee as a Public Information Officer in 1992 and then as the Acting Director of the Public Affairs Branch in 1993. The second request was for any information relating to the hiring of another Ministry employee by the Public Affairs Branch.

The Ministry responded to the first two requests on October 1, 1996, advising that the competition file pertaining to the Public Information Officer had been destroyed on February 6, 1996 pursuant to the Document Disposal Act. But the Ministry provided the applicant with records previously requested in 1994, which were contained on a freedom-of-information file. The Ministry also advised the applicant that the personnel file of the employee in question had been transferred to the Ministry of Transportation and Highways and that no other records responsive to his request were available.

With respect to the third request, the Ministry responded on October 2, 1996, providing the applicant with a one-page "appointment document," and advising that no other records responsive to the applicant's request were in their custody and control.

The applicant requested a review of all three matters on October 9, 1996.

3. Issue under review at the inquiry

The issue under review in this inquiry is whether the Ministry conducted an adequate search for the records 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.
4. The records in dispute

The records in dispute relate to the hiring of two Ministry employees who worked in the same branch as the applicant.

5. The Ministry's case

The Ministry has reviewed for me, in considerable detail, the history of this employee's access to information requests concerning certain appointments to the public service. (Submission of the Ministry, paragraphs 1.03-1.20) As noted above, the adequacy of the Ministry's search in three separate requests is at issue.

The Ministry submits that it has made every reasonable effort to assist this applicant as required by section 6(1) of the Act. Further, it has given me a very detailed description of each of the several searches that it has undertaken. (Submission of the Ministry, paragraphs 4.01-4.21, and Affidavit of Lynda Clark, Ministry Records Officer)

6. The applicant's case

I have reviewed the applicant's submission about his past relationships with the Ministry, his intentions to take it to the Supreme Court of British Columbia with respect to his allegations of discrimination against him, and the detailed history of each of his requests for access. In addition, I have reviewed his arguments about the quality of these related searches and his views on the Ministry's submissions and arguments on the same matters.

7. Discussion

I wish to state, for the record, that this applicant has figured in various Orders evolving from the same set of circumstances, which I am not inclined to repeat here. (See Order No. 112-1996, July 2, 1996, and Order No. 146-1997, January 28, 1997)

On the basis of its detailed submissions to me, I find that the Ministry has conducted a thorough and comprehensive search in response to each of the applicant's requests and has made efforts that fair and rational people would expect to be made and would find acceptable. (Submission of the Ministry, paragraph 4.21)

Objections by the applicant

During the inquiry process, the applicant raised two objections to the Ministry's response submission. First, the applicant claimed that the Ministry's Information and Privacy Coordinator had unilaterally changed his request for records by writing the words "including all interview and hiring expenses paid" on the request form. According to the applicant, the additional words narrowed his request, thus permitting the Ministry not to provide "any and all records / correspondence."

The Ministry responded to this objection in an affidavit sworn by the Ministry's Director of Information and Privacy:

On this request for records, the words `including all interview and hiring expense paid' is in my handwriting. I have no specific recollection of writing this, but it is my practice to only make changes to the wording of an applicant's request after consulting with the applicant. This is done in an attempt to clarify what is being requested and is part of the Public Body's effort to assist applicants and respond completely. (Affidavit of Ellie Jansen, January 21, 1997)

Further, the Ministry explained that the applicant's objection relates to a request he made to the Ministry on May 27, 1994. The Ministry's response to the 1994 request is not at issue in this inquiry. I accept the Ministry's explanations in response to this objection, and I also find the applicant's first objection to be unsubstantiated.

In his second objection to the Ministry's response submission, the applicant alleged that the Ministry inappropriately destroyed records relating to the investigation of a human rights complaint. The Ministry stated that the competition file relating to the hiring of a Public Information Officer in 1992 had been destroyed in 1996 in accordance with the Document Disposal Act. (Initial Submission of the Ministry, paragraph 4.08)

I have reviewed the submissions of the parties, including a decision of the British Columbia Council of Human Rights (July 31, 1996, file 940841). Based on the Ministry's reply submission and my reading of the Council of Human Rights' decision, I agree with the Ministry that the records relating to the hiring of the Public Information Officer did not relate to the human rights investigation, and that the Ministry did not destroy records relevant to the human rights complaint and investigation. I therefore find the applicant's second objection to be unsubstantiated.

Notice to withdraw requests

On February 10, 1997 the applicant notified my Office that he wished to withdraw all his requests for records. By this, I presume that the applicant wished to withdraw from the inquiry process. Section 58(1) of the Act requires that I issue an order, once the inquiry has been completed:

58(1) On completing an inquiry under section 56, the commissioner must dispose of the issues by making an order under this section.

By the time the applicant's withdrawal request arrived at my Office, I had completed the inquiry. Therefore, the Act requires me to issue an order in response to the applicant's request for review, even though he no longer seeks access to the records.

8. 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 Municipal Affairs and Housing in this case was a reasonable effort within the meaning of section 6(1).

Under section 58(3)(a), I require the Ministry of Municipal Affairs and Housing 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 Municipal Affairs and Housing has complied with this order and discharged its duty under section 6(1) of the Act.

February 13, 1997

David H. Flaherty
Commissioner