ORDER P-995
Appeal P‑9500036
Ministry of the Attorney General
NATURE OF THE APPEAL:
This is an appeal under the Freedom of Information and Protection of Privacy Act (the Act). The Ministry of the Attorney General (the Ministry) received a request for the following information:
Results of a dye test referred to in an appendix of a court order dated August 26, 1991 and any other evidence in support of the allegation that the requester's sewage system was in operation on and/or prior to a particular date.
The correct date that should have appeared on the Fine Form 818 in place of the date identified as a typographical error.
Why a named Justice of the Peace issued a particular order violating section 6 of the Provincial Offences Act (the POA).
Why another named Justice of the Peace violated section 6 of the POA.
The Ministry responded to the requester and advised him that the requested information pertains to a court matter and court records are not covered by the Act. The Ministry indicated, therefore, that it did not have custody or control of a record which would contain the information he was seeking. The Ministry further advised the requester that he should contact the district Court Services Manager, and provided the address and telephone number for that office. The requester appealed the denial of access.
A Notice of Inquiry was provided to the Ministry and the appellant. Representations were received from the Ministry only.
This is the second in a series of orders in which I deal with the issues surrounding "court records". Order P-994 was the first.
In Order P-994, I found that the courts, and records which relate to a court action and which are located in a court file, fall outside the application of the Act. I found further that such records, to the extent that they are located in a "court file", are not in the custody or under the control of the Ministry for the purposes of the Act. Finally, I found that copies of these records, to the extent that they exist independently of the "court file", are within the custody or under the control of the Ministry (or any other institution under the Act). I have no evidence before me in the current appeal which would lead me to alter these findings. Accordingly, I adopt these findings for the purposes of a determination of the issues in the current appeal.
In Order P-994, however, I acknowledged that the factual circumstances in that appeal did not facilitate a complete determination of all the issues which arose from the Ministry's decision. In particular, I indicated that a full determination of what constitutes records in a court file would have to be decided on a case by case basis. Before I am able to proceed with a discussion of the substantive issues in this appeal, however, a number of preliminary matters arising from the Ministry's representations need to be addressed.
PRELIMINARY MATTERS:
INTERPRETATION OF THE REQUEST
The Ministry's representations have raised a number of issues regarding its interpretation of the four parts of the request. I will deal with each part separately, but not in sequential order.
Part Two
The appellant has requested the correct date that should have appeared on the Fine Form. The Ministry indicates that this form is generated by its "ICON fine-tracking system" once a fine has been imposed and the information inputted into the system. The ICON fine-tracking system is a province-wide database in which all fines owed to the Government of Ontario are input.
As a result of an inputting error, the offence date on the form was listed as June 1, 1991, whereas it should have been July 1, 1991. The Ministry states that the Court Services Manager of the Ontario Court (Provincial Division) in Kenora has provided this information to the appellant on numerous occasions.
While it is possible that a record might exist which would respond to the appellant's query, I am of the view that he is asking for clarification of a typographical error on the form. This clarification was provided to him.
Previous orders of the Commissioner have dealt with the issue of "mootness" in appeals (Orders M-271 and P-942). These orders were concerned with the usefulness of continuing an appeal in circumstances where the appellant had obtained a copy of the record at issue through other legitimate means, which is somewhat different from the present case. However, the principles underlying these decisions are relevant. In Order M-271, Assistant Commissioner Irwin Glasberg made the following general comments regarding this issue:
In the ordinary course of events, I would be extremely reluctant to apply the resources of the Commissioner's office to decide an appeal where the appellant is already in possession of the records at issue through legitimate means. In my view, such an exercise would serve no useful purpose. In addition, appeals of this nature consume the scarce resources of institutions and impede the ability of the Commissioner's office to deal with the files of other appellants.
I agree with these comments. In the circumstances of this appeal, the appellant's request is in the nature of a query which has been answered on numerous occasions. Therefore, I find that this portion of the appeal is moot and no useful purpose would be served by proceeding with it.
Parts Three and Four
The Ministry submits that parts three and four, which ask questions rather than requesting access to records, should not be interpreted as requests under the Act. The Ministry asserts rather, that they are, in effect, complaints which accuse Justices of the Peace of impropriety, and that they should be addressed to the "Justice of the Peace Review Counsel".
In Order M-493, Inquiry Officer John Higgins addressed the argument that a request in the form of questions does not constitute a proper request under the Municipal Freedom of Information and Protection of Privacy Act (the MFOIPPA). With respect to this issue, he stated:
[E]ven if I agreed with the Board that the request is, for the most part, in the form of questions, I would not agree that, on this basis, the request is not a proper one under the Act. The Board has not provided any authority to substantiate this argument. Moreover, it would be contrary to the spirit of the Act to exclude a request on such a technical basis.
In my view, when such a request is received, the Board is obliged to consider what records in its possession might, in whole or in part, contain information which would answer the questions asked. Under section 17 of the Act, if the request is not sufficiently particular "... to enable an experienced employee of the institution, upon a reasonable effort, to identify the record", then the Board may have recourse to the clarification provisions of section 17(2).
Inquiry Officer Higgins concluded that the request in that case was a proper request under the MFOIPPA. I agree with his views on this issue, however, the factual circumstances in the current appeal are distinguishable from those in Order M-493.
I agree with the Ministry that the appellant's questions in parts three and four of the request appear to be a reflection of his views (or complaints) regarding the orders which were made. As Inquiry Officer Higgins indicated in Order M-493, where there is uncertainty regarding the request, or if the request does not sufficiently describe the record sought, the Ministry is obliged under section 24(2) to advise the requester of any defect and to assist him in reformulating the request. In this case, the Ministry could have taken steps to clarify the request. However, in my view, the appellant is clearly seeking answers to his questions from the Ministry rather than seeking access to records, which may require the creation of a record.