Access to Information Orders

ORDER PO-1682

 

Appeal PA‑990063-1

 

Ministry of the Solicitor General and Correctional Services

 

NATURE OF THE APPEAL:

 

The Ministry of the Solicitor General and Correctional Services (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act) for access to the following information concerning the Centre for Forensic Sciences (the CFS):

 

1.         Methods Manual for Chemistry

 

2.         Intoxilyzer 5000C Training Manual

 

3.         Documents/Photo Section Policies and Procedures for Handling and Preserving Evidence

 

4.         Gas Chromatography Methods Manual

 

5.         Gas Chromatography/Mass Spectroscopy Methods Manual

 

6.         Procedures for Handling and Preserving Evidence

 

7.         Procedures on Case Records

 

8.         Quality Assurance Manual‑Toxicology

 

The Ministry made an interim decision granting partial access to the records, and provided a fee estimate of $132.20.  The fees consisted of photocopying charges of $117.20 and search fees of $15.  The Ministry denied the requester’s subsequent request for a fee waiver.

 

The requester (hereafter the appellant) appealed the Ministry’s decision and Appeal No. P‑9800085 was opened.  During the mediation stage of that appeal, the appellant narrowed the scope of his appeal to the $15 search fee charged by the Ministry and the denial of the fee waiver.

 

Former Adjudicator Mumtaz Jiwan issued Order P‑1592 in which she upheld the $15 search fee and the Ministry’s decision not to waive the fee.

 

Shortly after the issuance of Order P‑1592, the appellant asked that the order be reconsidered on the grounds that former Adjudicator Jiwan failed to address the application of section 33(1) of the Act as it relates to the requested records.  The basis for the reconsideration request was as follows:

 

(1)        Section 33 applies to the records and therefore, no search fees are payable.  The appellant stated that the Directory of Records lists the manuals that are required to be in a public reading room and that the Ministry has provided him with such a list.  He stated that Management Board Secretariat  confirmed to him that those manuals are required to be in a public reading room.  Therefore, it is the appellant’s position that the requested records are listed in the Directory of Records and are required to be in a public reading room.

 

(2)        Based on the foregoing, the appellant submitted that no search fee should be charged for access to information that is available in a public reading room.

 

A Reconsideration Notice was issued to the Ministry and the appellant, inviting them to make representations on whether the request for reconsideration of Order P‑1592 fit within the grounds set out in the Commissioner’s policy respecting the reconsideration of orders.  At the same time, for purposes of expediency, the parties were also invited to make representations on whether sections 33 and 35 were relevant in the circumstances of this case, and whether the Ministry should be precluded from charging a search fee where the requested records are available in a public reading room.

 

Representations were received from both parties.

 

However, before completing the reconsideration decision, the Ministry issued a revised decision to the appellant, waiving the $15 search fee and advising that the records would be prepared for partial disclosure upon payment of the remaining photocopying charges.

 

The appellant objected to this course of action, claiming that the Ministry was attempting to side step the issue of the enforcement of sections 33 and 35 of the Act.

 

I informed the parties that, in my view, the reconsideration of Order P‑1592 was no longer required since the Ministry had decided to waive the search fee.  However, I also advised the parties of the following:

 

The Ministry’s decision on access to the manuals is an interim decision only.  It must now make a final decision.  If [the appellant] disagrees with the final decision, [he] may appeal and I will act as the adjudicator.  In that context I will deal with any unresolved issues as to whether the requested manuals fall within the class of records which must be maintained in a reading room pursuant to sections 33 and 35 of the Act.

 

The Ministry issued its access decision to the appellant on February 11, 1999, granting access in full to six of the manuals and partial access to the other two.  The Ministry denied access to certain portions of the “Gas Chromatography/Mass Spectroscopy Methods Manual” and the “Chemistry Section Method Manual” on the basis of sections 14(1)(i) and (l) of the Act.  The Ministry’s decision also included the final fee of $100 for photocopying, and asked the appellant to pay the balance owing of $33.90.

 

The appellant paid the requested $33.90 fee, but appealed the Ministry’s denial of access.

 

A Notice of Inquiry was sent to the appellant and  the Ministry.  Representations were received from both parties.

 

Prior to submitting representations, the Ministry issued two further decisions to the appellant.  The first, dated March 16, 1999, acknowledged payment of the remaining fees, and advised the appellant that the “Procedures on Case Records” manual, which the Ministry had initially stated would be disclosed in full, would now be partially severed pursuant to sections 14(1)(i) and (l) and section 21 of the Act.  The second letter, dated April 19, 1999, informed the appellant that the section 21 exemption was no longer being claimed for page 517 of the “Chemistry Section Method Manual”, and this page was disclosed in full.

 

Therefore, the records at issue in this appeal consist of the one severance on each of 13 pages of the “Gas Chromatography/Mass Spectroscopy Methods Manual” (the GCMSMM); 11 pages of the “Chemistry Section Method Manual” (the CSMM); and various severances on 16 pages of the “Procedures on Case Records” manual (the Procedures).

 

PRELIMINARY MATTER:

 

LATE RAISING OF DISCRETIONARY EXEMPTIONS

 

The appellant objects to the additional exemption claims raised in the Ministry’s March 16, 1999 letter.  He argues that the Ministry had already decided to disclose the Procedures in full when it issued its “final access decision” on February 11, 1999, and should not be permitted to change that decision in a way which would result in less disclosure.

 

The Commissioner’s Office has adopted a policy in which an institution has 35 days from the date of the Confirmation of Appeal to raise any new discretionary exemptions not originally claimed in its decision letter.  This policy was originally brought to the attention of institutions, including the Ministry, in the form of a publication entitled “IPC Practices: Raising Discretionary Exemptions During an Appeal”, distributed by the Commissioner’s Office to all provincial and municipal institutions in January 1993.  The objective of the policy is to provide government institutions with a window of opportunity to raise new discretionary exemptions, but not at a stage in the appeal where the integrity of the process is compromised or the interests of the appellant in the disclosure of information is prejudiced.

 

In the circumstances of this appeal, despite the length of time that has transpired since the appellant made his request, the Ministry’s decision on access to the records was not issued until February 11, 1999.  The appellant’s appeal of that decision was received by this office on February 24, 1999, and I sent a Confirmation of Appeal and Notice of Inquiry to both parties  March 15, 1999.  The new exemption claims were raised by the Ministry on March 16, 1999, which is within the scope of the “35-day” policy, so I am prepared to consider them.

 

DISCUSSION:

 

AVAILABILITY OF INSTITUTION DOCUMENTS

 

The Directory of Records issued by Management Board Secretariat states:

Institutions are required by the Act to make certain manuals available to the public in a reading room or other designated office.  This requirement applies to manuals, directives and guidelines that contain information about programs and enactments and are used to make decisions that affect the public.

 

The appellant’s position is that the requested manuals fall within the category of records which must be made available to the public in the Ministry’s reading room, pursuant to sections 33 and 35(2) of the Act.  As such, the appellant submits that search fees should not be permitted, because no search time should be required.  The appellant does not dispute the Ministry’s ability to charge for photocopying, but maintains that the actual charges could have been minimized if viewing access were initially provided.

 

Sections 33 and 35 read as follows:

 

33(1)    A head shall make available, in the manner described in section 35,

 

(a)        manuals, directives or guidelines prepared by the institution, issued to its officers and containing interpretations of the provisions of any enactment or scheme administered by the institution where the interpretations are to be applied by, or are to be guidelines for, any officer who determines,

 

(i)         an application by a person for a right, privilege or benefit which is conferred by the enactment or scheme,

 

(ii)        whether to suspend, revoke or impose new conditions on a right, privilege or benefit already granted to a person under the enactment or scheme, or

 

(iii)       whether to impose an obligation or liability on a person under the enactment or scheme; or

 

(b)        instructions to, and guidelines for, officers of the institution on the procedures to be followed, the methods to be employed or the objectives to be pursued in their administration or enforcement of the provisions of any enactment or scheme administered by the institution that affects the public.

 

35(1)    The responsible minister shall cause the materials described in sections 31, 32 and 45 to be made generally available for inspection and copying by the public and shall cause them to be made available to the public in the reading room, library or office designated by each institution for this purpose.

 

(2)        Every head shall cause the materials described in sections 33 and 34 to be made available to the public in the reading room, library or office designated by each institution for this purpose.

 

The Directory of Records lists two categories of public records available from the Ministry’s  Public Safety Division under the heading “manuals”:

 

•          Breathalyzer Training Manuals; and

 

•          Policy and Procedure Manuals (for each discipline).

 

The Directory of Records provides:

 

The manuals issued by each institution are listed in the directory.  Where the number of manuals is extremely large, the listing may contain subject categories rather than individual titles.  A more detailed inventory can be obtained by contacting the Freedom of Information and Privacy Coordinator in the appropriate institution.

 

The appellant asked for, and eventually received an expanded list of the Policy and Procedures Manuals for each discipline from the Ministry’s Freedom of Information and Privacy Office.  The records at issue in this appeal are among the manuals contained in this expanded list.

 

The appellant submits that the records fit within the scope of section 33(1)(b).  In summing up his position the appellant states:

 

•          We know that the requested records are listed in the Directory of Records.

 

•          The records meet the criteria outlined in section 33(1)(b) of the Act, and thus must be available to the public in a reading room designated for that purpose by the Ministry pursuant to section 35(2) of the Act.

 

•          The only fee applicable to the records available in a public reading room should be a copying fee.

 

The Ministry states that its public reading room is located at 200 First Avenue West, North Bay and that it is open during regular office hours “for the review of manuals and other information”.  The Ministry acknowledges that the manuals requested by the appellant are not available for viewing in the public reading room, and maintains that they are not the type of manuals envisioned by section 33 of the Act.

 

In support of its position, the Ministry submits:

 

There is no reference [in the Directory of Records] to the [requested] manuals being available in the Ministry’s public reading room.  Furthermore, the Ministry submits that the detailed manuals listing possessed by the appellant was prepared especially for him by the Centre of Forensic Sciences (CFS) staff at his specific request.  It was not a listing of manuals available through the Ministry’s public reading room.

 

CFS technical manuals relating to each discipline are normally located in the building space assigned to the relevant section at the CFS i.e. manuals regarding biology issues are stored in the biology section.  CFS manuals in general tend to be technical manuals that are compiled, written or purchased for the use of the scientists working at the CFS.  Most of the manuals contain procedures for conducting laboratory tests and for operating the specialized instruments and equipment used by CFS scientists.  The manuals are maintains and updated by an assigned staff person in the respective CFS section.

 

The CFS library, which is not a public reading room, is operated and maintained by the CFS primarily for use by staff of the centre and law enforcement officials.  Occasionally, academics and other individuals, by appointment, may be permitted to access the library resources, which consist in large part of technical and scientific journals, and other CFS materials.  Such appointments are scheduled only if the materials being requested are not needed by CFS staff, if the library staff are available to provide assistance and monitor the use of materials and if the contents of the materials are suitable for disclosure.

 

The specific reference to CFS manuals in the Directory of Records serves to assist requesters, such as the appellant, who may wish to submit a FIPPA request to access to manuals.  It does not follow that all such manuals are automatically available for public disclosure.  Such manuals may contain exempt material, including third party information, technical information that is of monetary value to the Ontario Government, information that would reveal law enforcement techniques and procedures, information that might assist an individual to commit a crime, etc.  The manuals must be reviewed on a case‑by‑case basis to ascertain whether they contain exempt information.

 

The idea behind creating a Directory of Records can be traced to Public Government for Private People: The Report of the Commission on Freedom of Information and Individual Privacy 1980, (Toronto: Queen’s Printer, 1980) (the Williams Commission Report).

 

The Williams Commission started from the assumption that “the primary purpose of the proposed freedom of information scheme is to facilitate greater accountability of “government” in the broad sense”.  It noted that government had an obligation to publish certain kinds of information.  This obligation relates to two types of materials, described at page 251 of Volume 2:

 

First, government institutions are often required to publish directory information which will be of assistance to individuals attempting to formulate requests for information in exercise of their statutory rights.  Thus, government departments are required to publish information relating to their organizational structure and program functions, together with an indication of the manner in which requests for information are administered by the department in question.  Second, obligations are typically imposed to publish or otherwise make available the “internal law” of government departments.  The phrase “internal law” refers to documents such as staff manuals, guidelines, departmental policy statements and other written materials which are used by public servants in making decisions ‑‑ such as a decision to grant or deny a benefit of some kind to an applicant ‑‑ in the course of administering government programs.  ... such materials do not constitute “law” in the full sense.  Nonetheless they may effectively govern the manner in which decisions are made with respect to determinations affecting individual citizens.  The general unavailability of this kind of material in the United States prior to the enactment of the Freedom of Information Act (FOIA) was often referred to as the “secret law” problem.

 

The Williams Commission recommended that a general directory listing the types and location of government held information be published and that the “internal law” of governmental institutions also be available to the public for inspection and copying.  The Williams Commission also recommended that such a directory include the location of the reading rooms, if available, of the institutions and the process of obtaining access to government held records.

 

In my view, the recommendations of the Williams Commission are reflected, in part, by sections 31‑36 of the Act, which appear under the heading “Information to be Published or Available”.  Specifically, sections 33 and 34 identify the types of records which fit this category, and section 35 outlines the manner in which they should be provided to the public.  In my view, the intent of these sections is to create a scheme of public access that does not necessitate a formal request for records under the Act, based on the underlying premise that certain manuals, directives and other “internal law” should be conveniently accessible to the public.  The statute also recognizes that individual records or parts of records which fit within this category may contain information that should not be made available on a routine basis.  Specifically, section 33(2) provides:

 

A head may delete from a document made available under subsection (1) any record or part of a record which the head would be entitled to refuse to disclose where the head includes in the document,

 

(a)        a statement of the fact that a deletion has been made;

 

(b)        a brief statement of the nature of the record which has been deleted; and

 

(c)        a reference to the provision of this Act on which the head relies.

 

Therefore, in my view, if the manuals at issue in this appeal fit within the category of records described in section 33(1), they must be “made available to the public in the reading room, library or office” designated by the Ministry, subject to any permitted severances under section 33(2).

 

In order to qualify as a record which must be made available to the public under section 33(1)(b):

 

(a)        the record must be instructions to, and guidelines for, officers of the institution;

 

(b)        the instructions and guidelines must deal with the procedures to be followed, the methods to be employed or objectives to be pursued by these officers in administering or enforcing the provisions of an enactment or scheme administered by the institution; and

 

(c)        the enactment or scheme must be one that affects the public.

 

Having reviewed the manuals, in my view, they meet the requirements of section 33(1)(b).  They contain instructions and guidelines for officials of the Centre for Forensic Sciences; these instructions and guidelines deal with procedures to be followed and methods to be employed by these officials in administering the forensic testing scheme operated by the CFS; and this scheme is clearly one that affects the public.  The representations provided by the Ministry would appear to support this finding.

 

Therefore, I find that the records must be made available to the public in the manner described in section 35.

 

What remains to be determined is whether the Ministry is in compliance with section 35(2) in providing an appropriate process for ensuring public access, and whether fees can be charged for records which fit the requirements of section 33 of the Act

 

The Ministry’s reading room is at the head office of the former Ministry of Correctional Services in North Bay.  Although this may be the most suitable location for the Ministry’s main reading room, it must be recognized that the CFS is located in downtown Toronto, the manuals are used  primarily by scientists working for the CFS, and North Bay may not be the most suitable or practical location for addressing public access requirements to these records.  However, section 35(2) recognizes that institutions may require flexibility in deciding how particular records should be made accessible, and does not restrict access to one official “reading room”.  In my view, the existing CFS library would be the appropriate designated office with respect to providing public access to manuals used by the CFS.  Based on the Ministry’s representations, it would appear that public access is already being provided there to some extent, and this could easily be expanded to satisfy the requirements of section 35(2) without compromising legitimate operational concerns.

 

In this regard, the appellant identifies his experience with other institutions, which may assist the Ministry in adapting present arrangements:

I speak from experience when it comes to using public reading rooms to access information in manuals.  I have visited, for example, the libraries of the Ministry of Health, the Ministry of Community and Social Services, and Management Board Secretariat, and the public reading room of the Ministry of the Attorney General. ...  The process is what I would describe as “self serve.”  Sometimes I have to sign into the library or room ‑ although usually it is not required ‑ and then find the manuals I want and go about my business taking notes.  In some instances I have spent several days reading and taking notes of manuals.  ...

 

To ensure that I would get access to a library marked “FOR MINISTRY EMPLOYEES ONLY” in which the manuals I wanted were present, I would contact the FOI Co‑ordinator to obtain a letter referencing the Act and sections 33 and 35 along with the name of a contact person in case the person with whom I would be interacting had any questions about allowing me in to look at the manuals.  ...

 

On another occasion, I visited the public reading room of the Ministry of the Attorney General to look at some manuals that I had seen listed in the Directory of Records.  When I went there, not all of the manuals were present.  I made arrangements to have the FOI Office obtain other copies of the manuals from the office within the Ministry that used the manuals in the course of its work and then let me know when they were available in the public reading room.  The staff members ‑ particularly [a named employee] ‑ were very helpful.  I revisited the public reading room and spent an entire day taking notes.  ...

 

Therefore, in order comply with the requirements of section 35(2), the Ministry must make the CFS manuals available to the public in the library or other suitable location at the Centre for Forensic Sciences in Toronto.

 

Turning to the questions of fees, section 57(1) provides:

 

A head shall require the person who makes a request for access to a record to pay fees in the  amounts prescribed by the regulations for,

 

(a)        the costs of every hour of manual search required to locate a record;

 

(b)        the costs of preparing the record for disclosure;

 

(c)        computer and other costs incurred in locating, retrieving, processing and copying a record;

 

(d)       shipping costs; and

 

(e)        any other costs incurred in responding to a request for access to a record.

 

The appellant does not dispute the payment of photocopy charges.  However, he submits that search fees should not be permitted.  He also points out that he has never been charged search fees by any other Ministry in comparable circumstances.

 

The Ministry makes the following submission on this issue:

 

With respect to the issue of processing fees and publicly available records, the Ministry submits that the provisions of section 57(1) do not preclude an institution from charging fees for publicly available records that are requested and released as a result of a FIPPA request.  The appellant’s request was submitted and responded to as a FIPPA request.  The fees that were charged are set out in section 6 of R.R.O. 1990, Regulation 460, which sets out the specific amounts that are to be charged for the purposes of section 57(1).

 

The fee structure set out in section 57(1) and accompanying regulations applies specifically to formal requests for access to records made under the Act.  It does not apply to records made available through the public accessibility scheme created by sections 33 and 35.  If records, such as the manuals at issue in this appeal, fall within the scope of section 33, then section 35(2) requires that they be made available in a designated reading room or office.  No formal request for access is required, and no search activity should be necessary.

 

As far as preparation costs are concerned, because severing a record is a function of preparing it for access by the public at large, and not for an individual user, any such costs should be absorbed by the Ministry.

 

Therefore, I find that no search or preparation fees are permitted under section 57(1) of the Act for records made available to the public under section 35(2).

 

In the present appeal, the appellant made a formal request for access out of frustration in not being provided with informal viewing access under section 35(2).  In my view, the existence of a formal request in the present appeal is irrelevant, since the appellant should have been provided with viewing access to these records in the first place.

 

FACILITATE THE COMMISSION OF UNLAWFUL ACT

 

The Ministry claims section 14(1)(l) as the basis for exempting pages 476 through 486 of the CSMM; specific instructions on how to operate components of the CFS database contained on pages 417 through 425a of the Procedures; and a number of computer codes, one of which is contained on each of 13 pages from the GCMSMM.

 

Section 14(1)(l) states:

A head may refuse to disclose a record where the disclosure could reasonably be expected to,

 

facilitate the commission of an unlawful act or hamper the control of crime.

 

This section stipulates that the Ministry may refuse to disclose a record where doing so could reasonably be expected to result in a specified type of harm.  This harm must not be fanciful, imaginary or contrived but rather one which is based on reason, and the Ministry must offer sufficient evidence to support the position that disclosure could reasonably be expected to result in the harms contemplated by the section.

 

As far as the database‑related records are concerned, the Ministry states that:

 

... release of this information would facilitate the commission of an unlawful act and hamper the control of crime insofar as the information could be used by an unauthorized person to fraudulently gain access to the CFS database.

 

The pages of the CSMM exempted by the Ministry deal with explosives.  The Ministry’s representations simply state:

 

Public release of this information would facilitate the commission of illegal acts against individuals or structures which involve the use of explosives and would also hamper the control of crime.

 

The Ministry provides no specifics to support its assertions.  It does not explain how any of these events could reasonably be expected to occur, generally, or as a result of disclosure to the appellant.

 

In my view, the Ministry has failed to discharge its burden of establishing the requirements of section 14(1)(l), and I find that none of the withheld information qualifies for exemption under this section.

 

ENDANGER SECURITY

 

The same pages of the CSMM and page 419a of the Procedures have also been withheld by the Ministry under section 14(1)(i), which reads as follows:

 

A head may refuse to disclose a record where the disclosure could reasonably be expected to,

 

endanger the security of a building or the security of a vehicle carrying items, or of a system or procedure established for the protection of items, for which protection is reasonably required;

 

The Ministry states that the information severed from Page 419a contains details of the security measures in place to protect the CFS database and backup dates.  According to the Ministry, release of this information would compromise the security of this system, and could result in a security breach involving data entered into the database.  The Ministry also states that disclosure would jeopardize the integrity and authenticity of the data, and submits that “[t]he resulting loss or corruption of data would have a detrimental impact on the CFS and the Ontario justice system in general which relies upon the investigative activities of the CFS ”.

 

Having carefully reviewed page 419a, I am not persuaded that the Ministry has established a reasonable expectation of harm to the security of a building or vehicle, or of a system or procedures established for protection of the database.  In my view, page 419a contains a general description of administrative procedures for conducting computer system backups common to most businesses.  No information on this page is specific to the CFS database under discussion, and the Ministry does not explain how any potential harms could reasonably be expected to occur, generally, or as a result of disclosure to the appellant.

 

In my view, the Ministry has failed to discharge its burden of establishing the requirements of section 14(1)(i) with respect to page 419a, and I find it does not qualify for exemption under this section.

 

As far as pages 476‑486 of the CSMM are concerned, the Ministry submits that disclosure of the procedures for handling explosives would compromise the physical security of the CFS and jeopardize the health and safety of CFS staff and other individuals.  The Ministry points out that these pages contain detailed information about the chemical composition of explosives and related matters. 

 

The appellant submits that:

 

The simple fact of the matter is that anyone with even a tiny bit of initiative could find explanations of the analysis of physical evidence in arson/explosives cases.

...

 

Similarly, there are many sources of information explaining the use of GC/MS tests in the realm of forensic science.

 

The appellant refers to a number of published articles in support of his position.

 

The appellant also maintains that the Ministry’s position that disclosure of a forensic science method would endanger the security of a building, vehicle, system or procedure is directly counter to the principle of “general acceptance” of a forensic science technique.  He argues that attempts to hide information relating to the methods or procedures used with respect to the analysis of evidence have been rejected by the courts and, that, forensic science activities must be subject to inspection, questioning and examination.

 

Some parts of pages 476‑486 are general in nature and do not relate to specific testing procedures for suspected explosives.  I find that the Ministry has not established the requirements of section 14(1)(i) with respect to these parts.  However, other parts contain detailed procedures for specific tests, and  I find that the Ministry’s evidence is sufficient to establish that disclosure these parts could reasonably be expected to endanger the security of a building or a system for which protection is reasonably required.   I will include a highlighted version of pages 476‑486 with the copy of this order provided to the Ministry, identifying those parts that qualify for exemption and should not be disclosed.

 

PERSONAL INFORMATION/INVASION OF PRIVACY

 

Under section 2(1) of the Act, “personal information” is defined, in part, to mean recorded information about an identifiable individual.

 

The Ministry claims that certain information severed from pages 421a and 424a of the Procedures qualifies as personal information.  This information consists of a list of names and corresponding case numbers and other identifying information.   The Ministry states that these parts of the records may contain personal information relating to individuals who were the subject of or involved in CFS forensic investigations in the 1980's.  The Ministry states that it cannot rule out the possibility that real cases were used to generate the case information screens in the Procedures.

 

The appellant has not submitted representations on this issue.

 

The names listed are quite specific (in other words not the usual “Jane Doe” or “John Doe” connotation one would expect when using fictitious examples) and appear in the documents in such a way as to represent an example of the type of information contained in particular parts of the CFS database.  In my view, it is reasonable to conclude that the examples represent actual cases.  Therefore, I find that the information which has been severed by the Ministry, as described above, qualifies as the personal information of the named individuals pursuant to section 2(1) of the Act.

 

Once it has been determined that a record contains personal information, section 21(1) of the Act prohibits the disclosure of this information unless one of the exceptions listed in the section applies.  The only exception which might apply in the circumstances of this appeal is section 21(1)(f).  In order for this section to apply, I must find that disclosure of the personal information would not constitute an unjustified invasion of personal privacy.

 

In the absence of any representations from the appellant addressing this particular issue, or other evidence weighing in favour of a finding that disclosure of the personal information would not constitute an unjustified invasion of personal privacy, I find that it would.  Therefore, the exception contained in section 21(1)(f) does not apply in the circumstances of this appeal, and the names and accompanying information contained on pages 421a and 424a qualify for exemption under the mandatory requirements of section 21 of the Act.

 

Although technically not within the scope of this appeal, I am concerned that the personal information of several members of the public is contained in manuals that are used by officials on a regular basis as part of the day‑to‑day operation of the CFS.   I would draw the Ministry’s attention to their obligations under Part III of the Act, and suggest that it consider whether the continued use and/or disclosure of the personal information is in compliance with sections 41 and/or 42 of the Act.  If it is not, then the information should be deleted from these manuals.

 

ORDER:

 

1.         I order the Ministry to make the records available to the public for viewing in the library or other suitable location designated for this purpose at the Centre for Forensic Sciences in Toronto, no later than June 18, 1999.

 

2.         I uphold the Ministry’s decision not to disclose the names and accompanying information contained on pages 421a and 424a of the Procedures, and those parts of pages 476 through 486 of the CSMM which I have found qualify for exemption under section 14(1)(i) of the Act.  I have attached a highlighted copy of these records with the copy of this order sent to the Ministry’s Freedom of Information and Privacy Co‑ordinator which identifies those portions which should not be made available to the public pursuant to Provision 1.

 

3.         No further fees may be charged to the appellant by the Ministry.

 

4.         I order the Ministry to provide me with written confirmation by June 18, 1999 that all provisions of this order have been complied with.

 

 

 

 

 

 

 

 

Original signed by:                                                                              June 4, 1999                         

Tom Mitchinson

Assistant Commissioner