Access to Information Orders

ORDER M-865

 

Appeal M_9600254

 

Hamilton-Wentworth Regional Police Services Board

 

 

NATURE OF THE APPEAL:

 

The appellant submitted a request to the Hamilton-Wentworth Regional Police Services Board (the Police) under the Municipal Freedom of Information and Protection of Privacy Act (the Act.  The request read:

 

            *From Jan 1989 - Sept 1995

 

            A - All investigative notes (members note books) “especially” Joint Force

                 organized crime records, notes, reports.

 

            B - Any and all records with my name in them period.

 

            Note:   Records and access are being requested due to threats by members from 1989-1995.

 

The Police wrote to the appellant and asked him to contact them by telephone to clarify his request and further advised that if they did not hear from him by April 27, 1996, they would be closing their file.

 

The appellant subsequently wrote to this office in May and July 1996 contending that he had clarified his request with the Police and that he is seeking all records which the Police have relating to him.

 

DISCUSSION:

 

It is well-established that requesters, as well as institutions, have responsibilities in exercising their right of access under the Act.  In Order 33, former Commissioner Sidney Linden made the following observations about the obligations of requesters and institutions under sections 47 and 48 of the provincial Act, which are the equivalent provisions to sections 36 and 37 in the municipal Act:

 

As a matter of common sense an institution will, usually, be in a better position than a requester to know what records are within its custody or control.  However, a requester may well have some knowledge as to the whereabouts of a record of personal information that pertains to him or her.  Sections 47 and 48 of the Act place the responsibility for ascertaining the nature or whereabouts of a record of personal information on both the requester and the institution.

 

It is clear from sections 47 and 48 of the Act that there is some obligation placed on the requester to provide as much direction to an institution as possible to where the records he or she is requesting may be found and/or to describe the records sought.  A requester's knowledge as to what records are in an institution's custody and control will vary.

 

A danger exists that, due to a lack of knowledge on the part of a requester, a record that would respond to his or her request may not be considered for release because it has not been identified by the requester with sufficient precision.  A request for "all" information relating to a requester, held by an institution, is one example where there is a potential to frustrate the right to access provided for in the Act because a  request for "all" information may not be sufficiently descriptive  for the purposes of subsection 48(1), although an institution that is computerized and able to search its files using only a name may be able to answer the request.  In the majority of these types of requests for "all" information, an institution is going to have to seek clarification from the requester in order to respond to the request for access. 

 

IS THE REQUEST SUFFICIENTLY SPECIFIC?

 

Section 36(1) of the Act states:

 

Every individual has a right of access to,

 

(a)        any personal information about the individual contained in a personal information bank in the custody or under the control of an institution; and

 

(b)        any other personal information about the individual in the custody or under the control of an institution with respect to which the individual is able to provide sufficiently specific information to render it reasonably retrievable by the institution.

 

The Police indicate that the appellant has made several previous requests for access to his own personal information.  In each case, with the assistance of the Police and this office, the appellant agreed to focus his request on a specific incident or event, rather than on the broadly-worded request as originally framed.  One of these requests resulted in Order M-247, in which I upheld the decision of the Police to deny the appellant access to certain records. 

 

The Police submit that it is not possible for them to search for records relating to the Joint Forces Unit as it was disbanded in 1992 and included members from other Police forces, including the Ontario Provincial Police and the Royal Canadian Mounted Police, whose records would not be included in the Hamilton-Wentworth Regional Police Services Board’s record system. 

 

The Police further submit that because the records sought may have already been the subject of earlier requests and Order M-247, it was unable to determine what, if any, other records it may maintain which would relate to the appellant.  In summary, the Police argue that they are unable to respond to the request as phrased, because it is too broadly-worded and would include records which have already been the subject of earlier requests and appeals.  Should the appellant wish to make a request for records relating to a specific occurrence, event or the involvement of a specific Hamilton-Wentworth Regional Police officer, it would then be in a position to respond more completely.

 

The appellant submits that his request is clear.  He is seeking access to all information which makes reference to him by name.

 

In my view, taking into account the comments made by Commissioner Linden above, the request provided the Police with very little information upon which to base a search, beyond the name of the requester and the lengthy time frame for which records were sought.  Bearing in mind the type of records retrieval systems operated by police services generally, usually pertaining to recent occurrence information, and the fact that the appellant is known to them, however, in my view, the Police could have been able to at least conduct a search of its own computer system for current information which is filed under the appellant’s name.  A search of the current information system using the name of the appellant may locate some, if not all, of the information which he requested.  In this way, at least part of the Police’s record-holdings could have been searched.

 

In summary, I find that while the appellant’s request is not record-specific, it is sufficiently specific to identify the location of perhaps some of the personal information which he is seeking.  I find that the information provided by the appellant in his request is sufficiently detailed under section 36(1)(b) to render some responsive information reasonably retrievable by the Police through a search of their current computerized records. 

 

However, I find that the appellant, has not provided sufficient specific information to enable the Police to locate all of the potentially responsive records which may be stored in other record-keeping systems which are not accessible through a search conducted using only the appellant’s name.  If the Police had been given the dates of specific occurrences and/or the names of the officers involved, it may have been in a position to conduct a comprehensive search for other records which may be responsive to the appellant’s request.  Without this information however, the Police are limited in the types of searches which they can conduct.

 

DID THE POLICE ASSIST THE APPELLANT IN REFORMULATING HIS REQUEST?

 

Section 17(2) of the Act states:

 

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).

 

The Police have described in detail the written and telephone contacts which its Freedom of Information and Protection of Privacy Co-ordinator made in attempting to assist the appellant in reformulating this, and previous requests, so that a search for responsive records could be made.  According to the Police, the appellant refused to cooperate or provide any details about the documents which he believes exist.

 

Based on the evidence provided by the Police, I am satisfied that their efforts to assist the appellant in reformulating his request were reasonable in the circumstances.  I specifically find that the appellant was made aware of the reasons why the Police were having difficulty in responding to the request and that he refused to assist in narrowing or focussing the scope of his request.

 

ORDER:

 

1.         I order the Police to undertake a search of its computerized record-keeping system for records which contain the name of the appellant and to communicate the results of that search to the appellant, in writing, by December 18, 1996.

 

2.         If this search reveals the existence of any responsive records, I order the Police to provide the appellant with a decision letter regarding access within the time frames prescribed by the Act, with the date of this order serving as the date of the request.

 

3.         I reserve the right to require the Police to provide me with a copy of the letters referred to in Provisions 1 and 2.

 

 

 

 

 

 

Original signed by:                                                                         November 27, 1996                   

Donald Hale

Inquiry Officer