Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 178-1997
July 25, 1997
INQUIRY RE: The adequacy of a search by the Ministry of Environment, Lands
and Parks 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 June 5, 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 of a decision by the Ministry of Environment, Lands and Parks (the
Ministry) to sever information from the records disclosed under section 22.
The applicant believes that there are more records in the custody and control
of the Ministry that have not been disclosed to him.
2. Documentation of the inquiry process
The applicant made a request on December 27, 1996 for records leading to the
letter that he received stating that his position was redundant. In addition,
he requested copies of all draft and final documentation with references to
classification and seniority leading to redundant positions in the Ministry.
The Ministry responded to the request on January 29, 1997 by disclosing to the
applicant all records in the custody or under the control of the Ministry that
responded to his request, but with some severing under section 22 of the Act.
On February 24, 1997 the applicant wrote to my Office requesting a review of
the Ministry's decision to sever information under section 22 and complaining
that the Ministry did not provide all the records that the applicant believes
exist. Following receipt of additional information from the applicant, his
request for review was opened on March 7, 1997. As a result of mediation, the
section 22 severing issue was resolved. However, the applicant still believes
that additional records exist which have not been provided.
3. Issue under review and the burden of proof
The issue under review at this inquiry is whether 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 he requested. 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.
4. The records in dispute
The records being sought relate to documentation leading up to the
letter of redundancy to the applicant dated December 10, 1996.
5. The applicant's case
The applicant has been contesting efforts to find him redundant for almost two years. His complaint is that he did not receive a single page of documentation leading to his December 10, 1996 redundancy letter; he does not believe that everything relating to that matter was done verbally. He is seeking records to support his complaints to the B.C. Council of Human Rights.
The applicant did not make a reply submission.
6. The Ministry of Environment, Lands and Parks' case
The Ministry submits that it has been under considerable budgetary pressures
that resulted in the elimination of almost 1,900 positions. This involved a
high-level review process during a short time period that did involve the
British Columbia Government Employees' Union (BCGEU), and then the issuance of
notices to individual employees about the new organizational structure.
(Submission of the Ministry, paragraphs 1.03, 1.04; and Appendix A)
The vast majority of the records released to the applicant do not contain
information leading to the 1996 redundancy letter. (Submission of the
Ministry, paragraphs 1.09, 1.10)
The Ministry's position is that it has made every reasonable effort to assist
the applicant as required by section 6(1) of the Act.
7. Discussion
Description of the Ministry's search efforts
I have reviewed the Ministry's detailed description of its efforts to search
for records responsive to the applicant's request. (Submission of the
Ministry, paragraphs 4.05-4.18) In my view, it is very helpful that the
applicant has now seen this description, which involved repetitive efforts to
find appropriate records. The applicant has also received an informative
one-page reply from the Ministry to his own submission.
The Ministry emphasizes that decisions on which positions were to be made
redundant occurred between November 22 and December 6, 1996: "The decision to
eliminate these positions was based on budget reductions and Ministry
restructuring as opposed to the quality of work being performed by individual
employees." (Submission of the Ministry, paragraph 4.17) This involved
meetings and conference calls in particular.
In Order No. 176-1997 (Ministry of Attorney General, July 21, 1997), I agreed
with the Ministry's identical argument with respect to searches for records for
both that inquiry and the current inquiry:
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)
I agree with the Ministry that it "has conducted a thorough and comprehensive
search, making efforts that fair and rational people would expect to be made
and would find acceptable." (Submission of the Ministry, paragraph 4.18)
8.
Order
I find that the search conducted by the Ministry of Environment, Lands and
Parks 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 25, 1997
David H. Flaherty
Commissioner