Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 170-1997
June 12, 1997
INQUIRY RE: A decision by the Insurance Corporation of British Columbia
(ICBC) to withhold records from an applicant and the adequacy of ICBC's search
for records
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 April 17,
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
decision by the Insurance Corporation of British Columbia (ICBC) (the public
body) to withhold records requested by the applicant and of the adequacy of its
search for records.
Certain of the records responsive to the applicant's request relate to the
Office of the Ombudsman and the Office of the Information and Privacy
Commissioner. ICBC withheld them under section 3(1)(c) of the Act.
Other records were withheld under sections 13, 14, 15, 17, 19, and 22 of the
Act. These relate to labour relations hearings and a judicial review involving
the applicant.
2. Documentation of the inquiry process
On August 6, 1996 the applicant asked ICBC for records withheld
pursuant to a request that he had made to ICBC in December 1993 (resulting in a
written inquiry and Order No. 12-1994, June 22, 1994) and for records
accumulated by ICBC after December 1993.
On October 4, 1996 ICBC released 53 pages of records with portions severed.
With respect to the applicant's request for records withheld pursuant to
previous requests, specifically of December 1993 and May 1995, ICBC stated that
they had been properly dealt with, and no further records would be disclosed.
On October 23, 1996 the applicant submitted a request for review of ICBC's
decision to my Office. He described a list of records that he said he should
have received from ICBC.
On March 6, 1997 ICBC released a second package of material from additional
records it found to be responsive to the applicant's request. Approximately
one-half of the additional records were withheld and severed under sections 3,
13, 14, 15, 17, 19, and 22 of the Act. The applicant then requested a review
of ICBC's decision not to release certain of these records.
The second release contained records relating to the Office of the Ombudsman
and, on March 14, 1997, it was given notice of this inquiry and an opportunity
to make a submission.
Finally, on April 8, 1997 ICBC located two photographs that the applicant
described in his request for review as missing from the first disclosure
package. It sent copies to the applicant on April 16, 1997.
3. Issues under review at the inquiry and the burden of proof
There are three issues before me in this inquiry. The first is whether
section 3(1)(c) of the Act applies to certain records withheld or severed by
ICBC that relate to the Office of the Ombudsman and to my Office.
The second issue is whether ICBC properly applied sections 13, 14, 15, 17, 19,
and 22 of the Act to records withheld from the applicant.
The third issue is whether ICBC fulfilled its duty to the applicant under
section 6 of the Act by adequately searching for and releasing all the records
pertaining to him in its custody or under its control.
The relevant sections of the Act are as follows:
`
Scope of this Act
3(1) This Act applies to all records in the custody or under the control of a
public body, including court administration records, but does not apply to the
following:
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.
Policy advice or recommendations
13(1) The head of a public body may refuse to disclose to an applicant
information that would reveal advice or recommendations developed by or for a
public body or a minister.
Legal advice
14 The head of a public body may refuse to disclose to an applicant information
that is subject to solicitor client privilege.
Disclosure harmful to law enforcement
15(1) The head of a public body may refuse to disclose information to an
applicant if the disclosure could reasonably be expected to
Disclosure harmful to the financial or economic interests of a public
body
17(1) The head of a public body may refuse to disclose to an applicant
information the disclosure of which could reasonably be expected to harm the
financial or economic interests of a public body or the government of British
Columbia or the ability of that government to manage the economy, including the
following information:
Disclosure harmful to individual or public safety
19(1) The head of the public body may refuse to disclose to an applicant
information, including personal information about the applicant, if the
disclosure could reasonably be expected to
(b) interfere with public safety.
(2) The head of a public body may refuse to disclose to an applicant personal
information about the applicant if the disclosure could reasonably be expected
to result in immediate and gave harm to the applicant's safety or mental or
physical health.
Disclosure harmful to personal privacy
22(1) The head of a public body must refuse to disclose personal information to
an applicant if the disclosure would be an unreasonable invasion of a third
party's personal privacy.
Section 57 of the Act, which establishes the burden of proof on the parties in
an inquiry, is silent with respect to a request for review about the
application of section 3 to records in the custody or under the control of a
public body. Since ICBC is asserting that section 3 applies in these
circumstances, it has the burden of proof.
Under section 57(1), if access to information in a record has been refused
under sections 13, 14, 15, 17, and 19, it is up to the public body, in this
case ICBC, to prove that the applicant has no right of access to the record or
part of the record.
Under section 57(2), if the record the applicant is refused access to under
section 22 contains personal information about a third party, it is up to the
applicant to prove that disclosure of the information would not be an
unreasonable invasion of the third party's personal privacy.
Section 57 of the Act is silent with respect to the adequacy of a search for
records arising under section 6 of the Act. I decided in Order No. 103-1996,
May 23, 1996, that, in these circumstances, the burden of proof is on the
public body.
4. The records in dispute
The records in dispute consist mainly of information relating to the
employment and termination of the applicant by ICBC and the ensuing labour
relations hearings and judicial review.
5. ICBC's submission
ICBC states that the applicant received over 1,300 pages of his records
in connection with his request that resulted in my Order No. 12-1994 (in favour
of ICBC). ICBC argues that this particular inquiry should focus on the
applicant's May 1995 access request rather than earlier ones. (Submission of
ICBC, paragraph 13)
I have reviewed below ICBC's most important submissions on particular
sections of the Act. With respect to sections 13, 15, 17, and 19, these
submissions were so cursory that I did not find it necessary to present them in
detail. These sections were also applied to only a small number of records and
mostly in situations where a record could be withheld under several
exceptions.
6. The Ombudsman's submission
The Ombudsman emphasizes that confidentiality is at the
core of her work: "The ability of parties to prepare positions and to
communicate candidly and freely with the Ombudsman in an effort to resolve
complaints about unfair governmental conduct is essential." This goal is
supported by section 9 of the Ombudsman Act and a 1985 decision of the
Supreme Court of British Columbia in Levey v. Friedmann (1985),
60 B.C.L.R. 101.
In the Ombudsman's opinion, section 3(1)(c) of the Act is "clearly designed to
respect both the independence and autonomy of the Ombudsman, and to facilitate
her work according to the terms of her statute." Her interpretation of the
words "created by" in this section is that it "includes all records which the
Ombudsman causes to come into existence as part of an investigation or that
relate to her work or that of her delegates." The Ombudsman wishes to avoid
the "anomalous situation where a letter sent from a public body to the
Ombudsman could be protected from disclosure by the Ombudsman herself, but the
Ministry file copy could be subject to the Freedom of Information and
Protection of Privacy Act."
7. The applicant's submission
The applicant's position is that ICBC should disclose all of his records to him in an unsevered format. He also furnished me with a list of missing files and offered suggestions as to the nature of the missing files, which he regards (with the severing) as suggesting a coverup by ICBC in matters affecting him.
8. Discussion
Section 3(1)(c): Scope of the Act
This section provides that the Act does not apply to the records
of an Officer of the Legislature that relate to the exercise of that Officer's
functions under an appropriate statute. In this inquiry, records of both the
Ombudsman and my Office are at issue. The legislative intent is to protect the
investigative and quasi-judicial core functions of an Independent Officer of
the Legislature. (Submission of ICBC, paragraphs 16, 18; and Order No.
152-1997, March 4, 1997) In this regard, I agree with the submission of ICBC
that "regardless of who has the custody or control of a record created by an
officer of the legislature, s. 3(1)(c) applies so long as the record was
created by that officer," or, I would add, a member of his or her staff.
(Submission of ICBC, paragraph 20) I further accept that it is "appropriate to
interpret the term `custody" to include constructive possession and not just
actual possession of a record." (Submission of ICBC, paragraph 21)
Interpreting this section becomes more challenging in this inquiry with
respect to records created by an ICBC employee in the course of mediation
efforts with a member of my staff in connection with the applicant's May 1995
access request. According to ICBC:
... the broad interpretation that should be given to s. 3(1)(c) leads to the
conclusion that where notes of a conversation with a portfolio officer are
taken by an employee of another public body, those notes are `created' in
connection with the functions of the officer of the Legislature for the
purposes of s. 3(1)(c). (Submission of ICBC, paragraph 25)
ICBC quotes with approval the reasons given by then Chief Justice Esson of the
Supreme Court of British Columbia in an adjudication under the Act dated
September 6, 1996. (In the matter of the Freedom of Information
and Protection of Privacy Act and in the matter of an adjudication
under section 62, requested by Martin Havey on November 17, 1995,
unreported decision of the Chief Justice of the Supreme Court as adjudicator,
September 6, 1996.) At page 10 of his reasons, the Chief Justice stated that
where I delegate my functions under the Act to a staff member or consultant,
records created by those delegates are covered by section 3(1)(c). (Submission
of ICBC, paragraph 26) I obviously follow the Chief Justice and agree with the
Ombudsman, to paraphrase my Order No. 152-1997, March 4, 1997, that "a record
of an Officer of the Legislature is a record written by or to an Officer of the
Legislature about a matter that relates to his or her functions as an Officer
of the Legislature."
The remaining problem is that ICBC wishes section 3(1)(c) to cover records
created by its staff member in working with a member of my staff:
The legislative intent underlying s. 3(1)(c) can only be respected if this
section is interpreted to extend so as to cover records `created' in such
circumstances. Otherwise, mere chance would dictate whether s. 3(1)(c) applied
or not. For example, if the Commissioner's portfolio officer created the
records by writing down the recommendations, s. 3(1)(c) would clearly apply.
On the other hand, notes of such recommendations taken by a public body
employee would not be covered. (Submission of ICBC, paragraph 27)
ICBC's evidence is that the particular records at issue in this inquiry concern
recommendations made by a Portfolio Officer with my Office, which an employee
of ICBC wrote down. (Affidavit of Mark Francis, paragraph 12)
Clearly, records created by the Officer of the Legislature and his or her
staff or consultants, such as lawyers, are referred to in the Act and
specifically excluded from its application. An exchange of correspondence
between such a staff member and an employee of a public body can be protected
as well. I now find that views of an employee of an Officer of the
Legislature, made into a record under the Act by an employee of a public body,
can be protected from disclosure under section 3(1)(c).
Section 14: Legal advice
ICBC submits that certain records identified in its release guide as having
been withheld under this section "disclose certain details as to the nature of
legal services rendered in respect to the applicant's labour relations
complaint against the OTEU [Office and Technical Employees' Union]."
(Submission of ICBC, paragraph 29) I will determine this matter on the basis
of my review of the records in dispute.
The records in dispute
With the valued assistance of ICBC's very detailed grid of the application of
specific sections of the Act to the various records in dispute, I have
carefully reviewed all of the records in dispute. I find that ICBC has
appropriately withheld and severed records under sections 3, 13, 14, 17, 19,
and 22 of the Act.
Adequacy of ICBC's search for records
In this evidently contentious matter, ICBC kept finding more and more records
as the applicant pressed his search. This concerns me. While I have
considerable sympathy with the demands that access requests place on public
bodies, it is important that members of the public not be paranoid in terms of
what they are likely to receive in response to a request for records.
Promoting careful records management in public bodies in order to be able to
find records is thus an essential aspect of complying with the goals and
obligations established by the Act.
In Order No. 12-1994, I instructed ICBC to keep searching for records
responsive to the applicant's original request. It did so, reported nil
results to me after three months, and I wrote to the applicant to the effect
that ICBC had complied with that Order. ICBC now submits that this exchange
bars the applicant from revisiting matters already ruled upon in Order No.
12-1994. (Submission of ICBC, paragraphs 8-11) I accept this position in the
peculiar circumstances of this particular case.
ICBC holds the view that it has made reasonable efforts to find all records
that responded to the applicant's (May 1995) request. Its sense of what
remains at issue is "unspecified separate individual files about the applicant,
and a second set of briefing notes about the applicant (one set of briefing
notes having previously been released to the applicant)." The affidavit of
Mark Francis discloses that "ICBC is not aware of any such responsive records,
having made exhaustive efforts to determine if such records are in the custody
or under the control of ICBC." (Submission of ICBC, paragraph 33)
ICBC'S evidence of reasonable search efforts is contained in the affidavits of
Mark Francis and Steve Heather. (Submission of ICBC, paragraphs 34-36) I have
read these affidavits and the accompanying documentation carefully and am
satisfied by their detailed contents that ICBC has in fact made every
reasonable effort to be responsive to the applicant and to search
diligently for records concerning him. I am pleased that this evidence has now
been provided to the applicant as well, so that he can see what ICBC has
actually done. ICBC describes as well the tangled chain of events associated
with the various access requests made by the applicant; I find no need to
revisit this chronology for purposes of this Order, since it has been given to
the applicant. (See, especially, the Affidavit of Mark Francis, paragraphs
6-25)
In the course of reviewing Mark Francis' description of his many efforts to
find records responsive to the needs of the applicant, I learned how certain
files had been located in a labour relations file that had been added to the
file since the initial disclosure to the applicant in December 1993. These
particular records have now been disclosed to the applicant. (Affidavit of
Mark Francis, paragraph 24) It is highly evident that ICBC has expended
considerable resources in trying to assist this particular applicant, and I am
satisfied that it has met its burden under section 6 of the Act.
9.
Order
I find that ICBC has properly applied section 3(1)(c) of the Act and is
authorized to refuse access to the records withheld under that section. Under
section 58(2)(b), I confirm the decision of ICBC to refuse access.
I also find that ICBC was authorized to refuse access to information in the
records in dispute under sections 13, 14, 15, 17, and 19. Under
section 58(2)(b), I confirm the decision of ICBC to refuse access.
I also find that ICBC was required to refuse access to the information in the
records in dispute under section 22. Under section 58(2)(c), I require ICBC to
refuse access to the applicant.
I also find that the search conducted by ICBC was adequate within the meaning
of section 6(1) of the Act. Under section 58(3)(a), I require ICBC to perform
its duty to assist the applicant; however, since I have found that ICBC has
made every reasonable effort to search for records, I find that ICBC has
complied with this Order and has discharged its duty under section 6(1).
June 12, 1997
David H. Flaherty
Commissioner