Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 167-1997
June 6, 1997
INQUIRY RE: The adequacy of the Ministry of Education, Skills and
Training's search for records requested by the applicant and its compliance
with the duty to assist
Fourth Floor
1675 Douglas Street
Victoria, B.C. V8V 1X4
Telephone: 250-387-5629
Facsimile: 250-387-1696
Web Site: http://www.oipcbc.org
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 April 30,
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 of a
public body's decision that no further records could be located that were
responsive to an applicant's request. The applicant believes that the Ministry
of Education, Skills and Training (the Ministry) did not comply with its duty
to assist him under section 6 of the Act.
2. Documentation of the inquiry process
On November 27, 1996 the applicant submitted a request to the Ministry for
copies of notes from telephone conversations between five Ministry personnel
and the applicant. The telephone conversations took place between August 1,
1995 and November 27, 1996. On December 18, 1996 the Ministry provided access
to the notes made by two employees and advised the applicant that the other
personnel reported that they made no notes of the telephone conversations in
question. The applicant believes additional notes exist, (including notes from
a phone conversation of April 23, 1996 with one employee), specifically
handwritten notes used to create a typed record that he received.
On January 14, 1997 the applicant requested a review of the Ministry's
response. The request for review was opened on January 30, 1997 as an adequacy
of search issue.
3. Issue under review at the inquiry and the burden of proof
The issue under review in this inquiry is whether the Ministry conducted an
adequate search for the records that 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.
Section 57 of the Act, which establishes the burden of proof on the parties in
this inquiry, is silent with respect to the issue of adequate search. Since
the public body is in a better position to address the adequacy of a search, I
have determined in a number of previous cases that the burden of proof should
be placed on the public body.
4. The records in dispute
The records in dispute relate to alleged records of telephone conversations
between the applicant and five Ministry employees during the period from August
1, 1995 to November 27, 1996.
5. The applicant's case
I have discussed below the relevant specifics of the applicant's
submission.
6. The Ministry of Education, Skills and Training's case
The Ministry's position is that it has made "every reasonable effort to
identify the records responsive to the requests. It is submitted that the
evidence presented by the Public Body in this inquiry establishes that it has
discharged its obligation to conduct a reasonable search." (Submission of the
Ministry, paragraph 4.04) I have discussed below the Ministry's description
and affidavit evidence in support of its actual search efforts.
7. Discussion
The applicant continues to pursue issues involving the Vancouver School
Board and the Carnegie Learning Centre that have been outlined in a number of
other Orders. His reflections on such controversial matters are not relevant
to this inquiry. (Reply Submission of the Applicant, pages 3-5)
The adequacy of the Ministry's search for records
I have reviewed the Ministry's detailed description of its efforts to locate
responsive records, and I find them to be adequate under the Act. (Submission
of the Ministry, paragraphs 4.05-4.09, and Affidavit of Allan Carlson)
The applicant has questioned the Ministry's policy on note taking and the
retention of such records, given his impression that those he spoke with on
various occasions were taking notes. (Reply Submission of the Applicant,
paragraphs 1, 3) If employees of the Ministry in fact created "records" as
defined under the Act, they would be under an obligation to retain them for a
period of time if the records were used to make a decision under the Act. But,
as I note from my own practice on such matters, one often starts to take notes
on a matter that turns out to be of no particular substance, leading to a
decision that transitory rather than permanent records have been created. This
is the case with many transactions conducted by e-mail, such as organizing the
date and time for a meeting. There is no requirement under the Act for public
servants to make notes of telephone conversations, even if it might be prudent
to do so on a variety of occasions.
Procedural objections
The applicant raised some objections about being required to make initial
submissions in this inquiry when the burden of proof was not on him. (See
Submission of the Applicant, paragraph 6.01) In several exchanges of
communications, the Registrar of Inquiries for my Office explained our
procedures to him and how they have changed over time. I have approved these
policies and procedures. They were created, and are amended as necessary, to
ensure a high level of procedural fairness for all applicants.
8.
Order
I find that the Ministry of Education, Skills and Training has met the burden
of proof to show that it conducted a reasonable and adequate search as required
by section 6(1) of the Act and has made every reasonable effort to assist the
applicant. On that basis it has discharged its duty under section 6(1) of the
Act. I therefore find under section 58(3)(a) of the Act that the Ministry is
not obligated to respond further to the particular information requests which
are the subject of this
Order.
June 6, 1997
David H. Flaherty
Commissioner