Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 176-1997
July 21, 1997

INQUIRY RE: The adequacy of a search for records by the Residential Tenancy Branch of the Ministry of Attorney General

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 30, 1997 under section 56 of the Freedom of Information and Protection of Privacy Act (the Act). This inquiry arose out of the applicant's request for review of a decision by the Ministry of Attorney General concerning the applicant's request for records from the Residential Tenancy Branch.

2. Documentation of the inquiry process

On September 5, 1996 the applicant submitted a request under the Act for records in the custody, or under the control, of the Residential Tenancy Branch of the Ministry of Attorney General. On October 7, 1996 the Ministry responded by disclosing records it identified as being responsive to the request and by severing a paragraph from one page of records under section 13 of the Act.

On October 10, 1996 the applicant requested a review of the Ministry's decision to sever the records. He also alleged that the Ministry did not conduct an adequate search.

On December 4, 1996 the Ministry prepared a second response package and disclosed an unsevered copy of the records that had been severed under section 13 of the Act. With the consent of both parties, the written inquiry was scheduled for April 30, 1997.

3. Issue under review at the inquiry and the burden of proof

The issue under review at this inquiry is whether or not the Ministry fulfilled its duty to the applicant under section 6 of the Act by conducting an adequate search and by disclosing all the records in the custody or under the control of the Ministry that were requested by the applicant. Section 6 reads 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 establishes the burden of proof on the parties to an inquiry about a decision to refuse access. It is silent with respect to the adequacy of a search for records arising under section 6. Since public bodies are in a better position to address the issue of adequate search, I have determined in previous Orders that the burden of proof under this section is on the public body. (See Order No. 149-1997, January 31, 1997, p. 2; Order No. 138-1996, December 18, 1996, p. 2; Order No. 127-1996, September 24, 1996, p. 3)

4. The records in dispute

The applicant requested records of the Residential Tenancy Branch created between February 1, 1996 and August 31, 1996 consisting of the following:

a) notes of conversations between the applicant and staff;

b) notes of conversations or correspondence between a third party and staff, and

c) notes or correspondence with the downtown Vancouver office of the Residential
Tenancy Branch.

5. The Ministry's case

The Ministry has provided me with a detailed description of its search efforts in connection with the applicant's request for records. (Submission of the Ministry, paragraphs 4.05-4.16; and Affidavit of Debra Barr, paragraphs 1-17)

I agree with the Ministry's argument with respect to searches for records:

The Public Body is not required to prove a negative (i.e. that certain records do not exist). The Act does not require that a public body prove to a degree of absolute certainty that the requested records do not exist. The Public Body is only required to show that it has made every reasonable effort to identify the records responsive to the request. It is submitted that the evidence presented by the Public Body in this inquiry establishes that it has discharged its obligation to conduct an adequate search. (Submission of the Ministry, paragraph 4.04)

In reply to the applicant's submission, the Ministry wrote:

The Public Body, in its initial submission, has provided a detailed description of its search efforts and has met its burden of proof in this case.


The Public Body has gone well beyond the call of duty in attempting to assist the Applicant. Despite the efforts of the Public Body, the Applicant has inappropriately based his `submission' on unsubstantiated and unwarranted personal attacks on the Public Body and its staff. This Applicant is clearly not attempting to exercise his access rights responsibly. (Reply submission of the Ministry, April 29, 1997, paragraphs 2, 3)

Based on my review of the correspondence and conduct of the parties in this inquiry, I agree that the applicant has acted inappropriately. I strongly caution applicants to use the Act responsibly and judiciously. Failure to do so may permit public bodies to consider requesting an authorization under section 43 of the Act if the applicant's actions fall within the scope of that section. (see Order No. 110-1996, Vancouver School Board, June 5, 1996, p. 6)

6. The applicant's case

The applicant made a very brief submission in relation to the adequacy of the Ministry's search for records, accompanied by a series of derogatory comments. However, in his reply submission of April 29, 1997, he admitted that he would not have proceeded to an inquiry for this file if he had received a summary of the Ministry's search efforts:

After viewing the search efforts which were provided to this inquiry by the public body I cannot make the complaint that there was not a [sic] adequate search for the records...[H]ad this [summary] been provided to me along with the response I would not of [sic] filed a complaint.

7. Discussion

On the basis of my review of the Ministry's description of its efforts to find records responsive to the needs of the applicant, I find that it conducted a thorough and comprehensive search that was well within the requirements of section 6 of the Act. (Submission of the Ministry, paragraph 4.17)

Procedural objections by the applicant

In this inquiry and in my immediately preceding Order, the applicant has submitted hundreds of pages of argument and assertion to this Office. I have reviewed all of the paper submitted by him, including his numerous objections on procedural grounds and in relation to irrelevant issues. I would like to respond to a number of the applicant's concerns and objections that were not resolved during the scheduling process for the inquiry.

(1) The applicant objected to the Policy and Procedures of my Office that prevent the parties to an inquiry from including mediation records in their submissions to the Commissioner. The applicant wrote:

I object to your refusal to allow records of mediation or any records related to mediation, you have no authority under the act to restrict evidence which an applicant may wish to enter. It is far too broad of a definition as well and restrict my right to enter voice recordings of portfolio officers and other public officials. (Objection by the Applicant, April 9, 1997)

In Order No. 171-1997 (Cariboo Regional District, June 26, 1997, pp. 4, 5), I commented on the need to separate the mediation process and inquiries:

I wish to assure applicants that I am not involved in mediation activities, and that I have approached the decision in the present inquiry with a fresh mind. Any prior involvement of a Portfolio Officer, including his or her professional or personal views on a matter in dispute, are not disclosed to me as the decision-maker on the issue. In this sense, my Office operates with a `firewall' in place for requests for review in order to ensure my neutrality and objectivity.

(2) The applicant objected to the time limits for responding to the Ministry's initial submission. I received written submissions from both the applicant and the Ministry on this issue and then decided that no extra time was required for the inquiry. On April 16, 1997, I wrote to the parties:

Our policies and procedures are set by my Office and are consistent from inquiry to inquiry. The Notice of Inquiry sets out a schedule for submissions. The schedule for submissions is the same from inquiry to inquiry, and it is my view that these are reasonable time frames for all parties to file their submissions. Since no submissions have been filed at this point in the inquiry, I find there is no justification for allowing extra time to file a reply submission to the submission of the public body at this time.

(3) The applicant accused the lawyer for the Ministry of willfully misleading the Commissioner in respect of the rescheduling of the written inquiry. On April 23, 1997, the applicant wrote that the Ministry's lawyer

...knowingly has misled the commissioner...when he states `...it was the Applicant, not the Public Body, which requested an adjournment of this inquiry.' [see the Ministry's Submission, paragraph 2.01] Considering I have a letter from your office, requesting, on behalf of the public body an adjournment of this inquiry.

The Ministry responded to the applicant on this issue on April 30, 1997 in its reply to the applicant's reply submission. The Ministry wrote, at paragraph 2:

The Applicant is correct when he states that it was the Public Body which requested an adjournment of this inquiry...[I] had absolutely no intention of misleading the Commissioner. My sole intention was to ensure that the Commissioner had accurate facts. A correct statement of the facts with regard to the adjournment is as follows:


On December 18, 1996, the Public Body requested an adjournment of the inquiry until January 22, 1997. The Applicant stated that January was not good for him, and requested that the inquiry be adjourned to April 30, 1997. The Applicant and the Public Body consented to adjourning the inquiry until April 30, 1997.

In my opinion, the applicant has not established that the Ministry's lawyer willfully or intentionally attempted to mislead me in this inquiry. There is no credible evidence to demonstrate that the Ministry's lawyer had such an intention. The Ministry's lawyer provided a complete and satisfactory explanation of the initial confusion over the scheduling issue. If the applicant has continuing concerns that fall within the offences and penalties provision in section 74(1) of the Act, he may wish to contact the Office of the Attorney General of British Columbia to request an investigation. I therefore decline to pursue the applicant's allegations against the Ministry's lawyer.

8. Order

I find that the search for records conducted by the Ministry of Attorney General was adequate within the meaning of section 6(1) of the Act. Under section 58(3)(a), I require the Ministry to perform its duty to assist the applicant. However, since I have found that the Ministry has made every reasonable effort to search for records, I find that the Ministry has complied with this Order and has discharged its duty under section 6(1).

July 21, 1997

David H. Flaherty
Commissioner