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FOI (Ont) - Institutional Searches. Youbi-Misaac v. Information and Privacy Commissioner of Ontario
In Youbi-Misaac v. Information and Privacy Commissioner of Ontario (Div Court, 2024) the Divisional Court dismissed a JR of a decision from the IPC, here related to a request for access to information about "records relating to a ridesharing service provided at the [Seneca] College".
The court considers the adequacy of an institution's search for records:[2] .... At the outset of the adjudication stage of the IPC appeal process, the Adjudicator issued a Notice of Inquiry to the College which identified the issue of whether the College had conducted a reasonable search for responsive records and provided directions to the College on representations and information that would assist the Adjudicator in determining this issue. The directions included the following:This information is to be provided in affidavit form. The affidavit should be signed by the person or persons who conducted the actual search. It should be signed and sworn or affirmed before a person authorized to administer oaths or affirmations. [3] The College submitted an affidavit from the College’s Privacy Officer outlining the steps she took to coordinate the College’s search for responsive records across multiple departments. In his representations to the Adjudicator, the applicant argued that the description of searches undertaken by various College employees should be “back[ed] up” through separate affidavits from each staff member who conducted searches for records.
[4] In the Order, the Adjudicator rejected the applicant’s position and found that “it was sufficient for the college to provide its evidence to the IPC by way of one affidavit sworn by the college’s Privacy Officer on its behalf.” The Adjudicator upheld the College’s search for records as being reasonable.
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[8] Section 10(1) of FIPPA grants the public a right of access to a record in the custody or under the control of an institution unless one of the statutory exemptions applies. An institution must issue an access decision to the requestor with respect to records identified in its search. Where a requestor believes additional records exist beyond those identified by the institution, they may appeal the decision to the IPC.
[9] As the Adjudicator correctly observed, FIPPA does not require the institution to prove with absolute certainty that records, or additional records, do not exist – to discharge its statutory obligations, the institution must provide sufficient evidence to show that it has made a reasonable effort to identify and locate any records that are responsive to the request.
[10] The IPC’s decision concerning the institution’s search for responsive records meets the reasonableness standard of review where: (i) the adjudicator applied established and well-reasoned principles to assess the reasonableness of the institution’s search; (ii) the adjudicator considered all the relevant evidence in coming to their conclusion; and (iii) the applicant provided no reasonable basis for concluding that additional responsive records existed: Whitney v. Information and Privacy Commissioner of Ontario, 2013 ONSC 996, at para. 12.
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[16] There is no statutory, regulatory, or procedural obligation that limited the Adjudicator’s exercise of discretion in accepting the Privacy Officer’s affidavit and not requiring affidavits from multiple staff members. The IPC’s Code of Procedure explicitly provides for flexibility in the conduct of individual inquiries. In addition, Rule 20.01 provides that “The IPC may waive or vary any of the procedures prescribed by or under this Code, including any requirements or time period specified in any written communications from the IPC, if it is of the opinion that it would be advisable to do so in order to secure the just and expeditious determination of the issues.”
[17] The IPC’s Code of Procedure does not create any binding requirements regarding a Notice of Inquiry – it is a procedural tool used by the presiding adjudicator to manage the hearing process. The Adjudicator recognized that she had the authority to control the inquiry process. The Adjudicator concluded that the content of the College’s affidavit evidence satisfied the test for a reasonable search. The Adjudicator’s decision in this regard was reasonable as was her conclusion that there was no fundamental defect in the adjudication process.
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