Order F2009-031: Summary

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ORDER: F2009-031

DATE: March 30, 2010

PUBLIC BODY: Alberta Employment and Immigration

FOIP REQUEST: The applicant made an access request to Alberta Employment and Immigration (AEI) for records of telephone calls made to the applicant by an employment standards officer (officer). AEI performed a search and responded that it could not locate any responsive records. The applicant asked the Commissioner to review of that response.

ISSUE: The applicant argued that AEI failed to produce records of a call that the applicant said he received from the officer. AEI argued that telephone calls made from a non-government telephone number are not under the control of AEI and do not need to be searched in response to an access request.

DECISION AND REASONS:

  • The Adjudicator accepted that the officer had made a telephone call to the applicant that had not been included in AEI’s response to the applicant. The Adjudicator agreed with the applicant that a reasonable search would have included asking the officer which telephones were used to make calls to the applicant.
  • Citing Order F2007-029, the Adjudicator found that AEI failed to provide adequate evidence that it performed an adequate search for records since the public body did not explain why it only searched the officer’s direct office line and business cell telephone numbers. The Adjudicator found that if AEI could not contact the officer to ask what other telephone the officer may have used, then the public body should have investigated whether other telephones on its system were accessible to the officer to use.
  • The Adjudicator ruled that if the officer had indeed contacted the applicant from a home telephone, then AEI had to determine whether it actually had control of any records relating to those telephone calls, based on criteria for determining control as set out in Order 2000-021. A public body may have a high degree of control over notes of a telephone conversation made by the officer in the course of employment, while there may be a lesser degree of control over logs created by a telephone service provider of the officer’s use of a home telephone.
  • The Adjudicator ordered AEI to conduct a new search for responsive records, and determine whether it had control of any records relating to a call the officer made to the applicant from home, if any.

SECTOR: Government