ORDER P-287
Appeal 900477
Ministry of Transportation
O R D E R
BACKGROUND:
On May 15, 1990, the Ministry of Transportation (the "institution") received a request for access under the Freedom of Information and Protection of Privacy Act (the "Act") to:
... records and other that will provide us with the evolution of the drafting of section 7(d) of Regulation 86/89 [under the Highway Traffic Act] to its present reading and to include tabled papers from persons or associations that lobbied in support or opposed of this exemption of a specific class of drivers from the daily trip inspections.... Kindly include any relevant minutes retained by the ministry personnel who were representing [the institution] when attending meetings ('National Safety Code Committee', 1985 to May 1988 and then 'Standing Committee on Compliance and Regulatory Affairs') concerning the National Safety Code for Motor Carriers...
The requester indicated that its objective was to ascertain why a specific class of driver was exempted from the daily trip inspection requirement ("circle check") referred to in the regulation.
The institution issued an fee estimate of $837.00 for 34.5 hours of chargeable search time at $24.00 per hour, and an estimated 75 pages of photocopying at .20 cent a page. The requester asked for a fee waiver, and paid a deposit of $420.00 to the institution. The institution waived the remaining portion of the fee, accepting the $420.00 as full payment.
The institution disclosed thirteen pages (the "record") to the requester on August 13, 1990.
The requester felt that the record was not responsive to its request and appealed the institution's decision to this office.
The appellant states that the institution incorrectly interpreted the request as relating to the exemption from making a trip inspection report, as opposed to the exemption from making trip inspections. After receiving the record, the appellant also appealed the amount of the fee estimate provided to it by the institution, claiming that the fee should be refunded because the record was not responsive to its request.
During the course of mediation, the appellant alleged that an agreement existed between OC Transpo and the institution which excludes the requirement for a circle check. In the appellant's view, this record is responsive to the request and has not been disclosed. The institution maintains that no such record exists.
Attempts to mediate this appeal were not successful. Accordingly, notice that an inquiry was being conducted to review the decision of the head was sent to the appellant and the institution. Enclosed with each notice was a report prepared by the Appeals Officer, intended to assist the parties in making their representations concerning the subject matter of the appeal. Written representations were received from the institution and the appellant.
ISSUES:
A. Whether the institution had an obligation under section 24(2) of the Act to clarify the request with the requester.
B. Whether the institution's search for records was reasonable in the circumstances.
C. Whether the amount of the fee was calculated in accordance with section 57 of the Act.
SUBMISSIONS/CONCLUSIONS:
ISSUE A: Whether the institution had an obligation under section 24(2) of the Act to clarify the request with the requester.
As has been stated in a number of previous Orders (Orders 13, 33, 38, and 134), both requesters and institutions have certain obligations with respect to access requests under the Act. These obligations are set out in section 24 with respect to general access requests.
Sections 24(1) and (2) read as follows:
(1) A person seeking access to a record shall make a request therefor in writing to the institution that the person believes has custody or control of the record and shall provide sufficient detail to enable an experienced employee of the institution, upon a reasonable effort, to identify the record.
(2) If the request does not sufficiently describe the record sought, the institution shall inform the applicant of the defect and shall offer assistance in reformulating the request so as to comply with subsection (1).
An institution that receives a broadly worded request has three choices in making its response. It can choose to respond literally to the request, which may involve an institution-wide search for the records requested; it can request further information from the requester in order to narrow its area of search; or it can narrow the search unilaterally. If the third option is chosen, the institution must outline the limits of the search to the appellant.
The institution in this case submits that the request was sufficiently detailed, because of the way in which the subject
matter, scope and time frame of the request were specified by the appellant. The institution submits that it chose to respond literally to the request, because it considered the request to be quite specific.
The appellant's request makes specific reference to circle check inspections, but also requests all records respecting the evolution and drafting of section 7(d) of Regulation 86/89. In addition, the request asks for any relevant minutes retained by the institution's personnel when attending National Safety Code Committee meetings. In my view, the request was sufficiently detailed and clear for the institution to respond to it. There is no apparent ambiguity on the face of the appellant's request, and it is capable of interpretation and response by the institution without clarification.
ISSUE B: Whether the institution's search for records was reasonable in the circumstances.
The institution submits that its search extended to all relevant records, including minutes and submissions by various interest groups, as well as any relevant minutes of the National Safety Code Committee or the Standing Committee of Compliance and Regulatory Affairs meetings.
During the course of mediation, an official of the institution explained to the Appeals Officer that a search of nine different institution offices, the Archives of Ontario, and external organizations was undertaken by the Freedom of Information Co-ordinator for the Safety & Regulation Division, and the results of this search were confirmed through discussions with the Manager of the Motor Carrier Policy Office, the office responsible for the development and implementation of the National Safety Code. As a
result of its search, the institution identified thirteen pages which were responsive to the request and disclosed them to the appellant.
With respect to the alleged existence of an agreement between the institution and OC Transpo making it exempt from the circle check inspection requirement, the institution provided a signed statement from the Assistant Deputy Minister, Safety and Regulation Division which clearly states that an agreement does not exist. Based on this statement and the search for records undertaken by the institution in this appeal, I am satisfied that all reasonable efforts were made to locate the agreement in question.
In the circumstances of this appeal, I am satisfied that the institution made reasonable efforts to locate all records responsive to the request.
ISSUE C: Whether the amount of the fee was calculated in accordance with section 57 of the Act.
The appellant claims that the fee charged should be refunded because the record provided by the institution is not responsive to the request. I have reviewed the contents of the record and note that parts of it refer to trip inspections, as opposed to trip inspection reports, and therefore are responsive to the request. While the remaining parts of the record refer to trip inspection reports as opposed to trip inspections, it is my view that these parts are also responsive to the appellant's request because a trip inspection report can only be completed after a trip inspection has been completed. In summary, I am satisfied that all parts of the record are responsive to the appellant's request.
In its representations, the institution provided the following fee estimate:
Time Required:
Locate & Retrieve - 32.0 hrs.
Prepare - 4.25 hrs.
Total.........................36.25 hrs.
Less: (2) hrs. of
manual search time.. 2.00 hrs.
Total Time .............................34.25 hrs.
Subtotal cost (@ $24.00 per hour) .............$822.00
Total estimated charge for pages
photocopies (75 @ $.20) .......................$ 15.00
Total Fee Estimated ...........................$837.00
The fee estimate was based on the rate of $6.00 per quarter hour which was the rate permitted by Ontario Regulation 532/87 at the time the request was made.
Before disclosing the record to the appellant, the institution agreed to reduce the fee to $420.00.
In view of this reduction and the description of the search operations undertaken by the institution in its submissions, I am satisfied that the fee charged by the institution is appropriate in the circumstances, and is in accordance with section 57 of the Act.
ORDER:
I uphold the decision of the head to charge a fee in the amount of $420.00.
Original signed by: April 8, 1992
Tom Mitchinson
Assistant Commissioner