ORDER P-239

Appeal 890187

Ministry of Government Services

O R D E R

BACKGROUND:

This is an appeal of a decision made by the Ministry of Government Services (the "institution"). The events leading up to this appeal began when the requester wrote to the Ministry of Housing to request access to all documents relating to an investigation under the Ombudsman Act R.S.O. 1980, c. 325. The subject of the investigation was the "North Pickering Project", a 1972 project of the Ontario Government involving the planned acquisition of some 25,000 acres of property for the development of integrated service, transportation, recreation and community facilities near an airport which the federal government was proposing to build in the area.

Until 1974, the land acquisition for the project was undertaken by negotiation rather than by expropriation with the Ministry of Municipal Affairs and Housing appointing agents to act on its behalf in appraising and negotiating property purchases. The Ombudsman received complaints relating to the activities of some of these agents and the ministry generally. Part of the Ombudsman's investigation into the complaints was carried out by the holding of private hearings and the submission of a report on those hearings to the Ombudsman by the Ombudsman's appointed hearing officer, Mr. Justice Hoilett.

The institution obtained the records which were the subject matter of the request when it took over the real property matters formerly handled by the Ministry of Municipal Affairs and Housing. Accordingly, the Ministry of Housing's Freedom of Information and Privacy Co-ordinator transferred the request to the institution pursuant to section 25 of the Freedom of Information and Protection of Privacy Act, 1987 (the "Act").

The institution's Freedom of Information and Privacy Co-ordinator (the "Co-ordinator") wrote to the requester to advise him that, pursuant to section 57 of the Act, payment of a fee in the amount of $1304.75 was required prior to proceeding with his request. The requester accepted the fee and forwarded a cheque for the full amount to the institution.

Following the requester's payment of the fee, the Co-ordinator contacted the requester by telephone to advise him that the records were being prepared for release. As the Co-ordinator and the requester agreed that the requester probably did not require copies of all of the records, arrangements were made for the requester to attend at the institution to examine the records and identify those records which he did require.

Subsequently, the Co-ordinator contacted the requester by telephone to advise him that the institution's Deputy Minister had decided: (1) to deny access to all of the records pursuant to section 21 of the Act; and, (2) to refund his fee payment. The requester appealed the head's decision.

Notice of the appeal was given to the institution and the appellant. The appeal was assigned to an Appeals Officer who obtained and reviewed the records at issue in this appeal. The Appeals Officer attempted mediation but a settlement was not achieved and the matter proceeded to an inquiry.

Notice that an inquiry was being conducted to review the decision of the head was sent to the institution and the appellant. The Notice of Inquiry was accompanied by an Appeals Officer's Report.

Following receipt of the Appeals Officer's Report and prior to submitting representations, a representative of the institution's legal department contacted the Appeals Officer to indicate that the institution was planning to meet with the appellant in an effort to

resolve the appeal. Mediation efforts resumed between the parties with the assistance of the Appeals Officer. The institution provided the appellant with an index of records relating to the request. The appellant identified those records which were of interest to him. The institution released a number of these records to the appellant; however, two of the records (The North Pickering Project Small Acreage Values Review & Analysis, and Cedarwood Update 14 & 15 Jan. 1974) could not be located by the institution.

A Compliance Investigator from this office was assigned to investigate the adequacy of the institution's search for these two records. Following his investigation, the Compliance Investigator concluded that the institution had conducted a reasonable search and that the records, if they still existed, were not within the custody or control of the institution. When informed of the Compliance Investigator's conclusions, the appellant indicated to the Appeals Officer that he was satisfied that the institution had made a thorough search for the records.

Despite the release of a number of records to the appellant, settlement of the appeal could not be effected in respect of four records:

Record 1 - A 1981 report of a special further investigation of the Deputy Ombudsman on the acquisition of land in North Pickering;

Record 2 - Three documents prepared by an Ontario Provincial Police Officer for the Director, Criminal Investigations Branch and entered as "Exhibit 2161" to the Hoilett hearings;

Record 3 - Interview notes prepared by the Ombudsman's staff during the initial investigation and entered as "Exhibits 205, 206, 207 and 208" to the Hoilett hearings; and,

Record 4 - A memorandum submitted to the Director of the North Pickering Land Acquisition and Management Branch of the Ministry of Housing detailing negotiations regarding the acquisition of a particular property and entered as "Exhibit 2516" to the Hoilett hearings.

During the course of the inquiry, representations were received from the institution and the appellant. Representations were also received from