Missing Records plus Exemption Complaints – How the Office of the Information Commissioner (OIC) will Investigate
Refusal complaints can be about exemptions applied to responsive records, i.e. redacted information or about concerns that not all records have been provided in response to a request.
Where both of these issues are raised in one letter of complaint, the OIC has, in the past, registered only one refusal complaint. Accordingly, the investigation reviewed both the exemptions applied by the institution and the missing record aspect of the complaint.
The determination of whether a complaint was well-founded was made based on whether there was merit to either aspect of the complaint. Thus, if additional records were found the complaint was well-founded even if the exemptions were found to have been justified. If we determined that exemptions had not been properly applied, the complaint would be concluded as well-founded even if no additional records were found.
This manner of proceeding led to a lack of clarity amongst complainants and institutions about the finding and the scope of our investigations which has, at times, resulted in delay. It has also made it difficult for us to measure the number of missing record complaints and the outcome of those complaints.
To streamline our investigative process, to simplify our findings and to better track the number and outcome of missing records complaints as of July 1, 2013, we will, pursuant to section 34 of the Act, implement the following process:
When the OIC receives one letter of complaint that seeks a review of exemptions and an investigation into whether additional records exist, we will register two separate complaints: a missing records complaint and an exemption complaint. The complaints will be linked in our tracking system.
The exemption complaint will be investigated in accordance with the usual process, that is, the assigned investigator will be responsible for determining whether the exemptions have been properly applied.
Missing records complaints will be completed when the investigator determines that additional records exist or that the initial response by the institution was complete.
In both instances, the investigator will ensure that the representations of both the institution and the complainant are sought and considered.
When additional records are located and/or provided to the complainant as a result of our investigation of a missing records complaint, the investigator will advise the complainant that the investigation will be closed as well-founded. The investigator will also inform the complainant that they have a right to complain to our office, within 60-days of receiving the response, if after reviewing the new response he/she is not satisfied with it. The investigator will also recommend that if a new complaint is made, the complainant reference the original missing records complaint number in subsequent correspondence.
Should you have any questions about this Advisory Notice you may contact the Director of the Intake and Early Resolution Unit, Ms. Sandra George at: firstname.lastname@example.org or at (613) 995-2627.