Access to Information Orders

Decision Information

MO-1578

Collection Access to Information Orders
Date 2002-10-10
Type Order
Subjects Law Enforcement
Applicable Legislation MFIPPA; MFIPPA - 8(1)(a)
Summary:

NATURE OF THE APPEAL: This appeal concerns a decision of the City of Hamilton (the City) made pursuant to the provisions of the Municipal Freedom of Information and Protection of Privacy Act (the Act ). The requester (now the appellant) had sought access to records regarding red light cameras (RLCs) and the amount of time a yellow light is displayed at a traffic light. The appellant concurrently submitted a second request to the City seeking access to records regarding the selection criteria used to determine the placement of RLCs in the City. As both requests seek similar information, the City proposed that the two requests be treated as a single request. Subsequently, the appellant clarified its request, advising that it was only interested in information relating to the length of time a yellow light is displayed on a traffic light, as this pertains to RLC settings, and the criteria used for the selection of RLC sites. The City issued a fee estimate for the costs associated with its search for records responsive to the appellant's request and the photocopying of the records. The City, subsequently, issued a decision letter in which it advised that it had located 415 responsive records, including e-mails, meeting minutes and agendas, statistical data, timing sheets, reports to council and correspondence. The City granted partial access to the responsive records. The City claimed that seven records, described as e-mails containing legal advice, were exempt in their entirety, pursuant to section 12 of the Act . The City claimed that 86 records, consisting of two e-mails containing personal information, one page of minutes from a steering group meeting containing recommendations, three e-mails containing legal advice, and 80 records containing locations of RLCs, or considered locations, were partially exempt. In respect of the 86 records, the City relied, respectively, upon section 14(1) (personal information), section 7(1) (advice or recommendations), section 12 (solicitor-client privilege), and section 8(1)(a) (law enforcement matter), of the Act . The City indicated that one RLC location was already in the public domain and, therefore, reference to this location was disclosed. In its decision letter, the City also issued its final fee calculation pursuant to section 45 of the Act . The appellant appealed the City's decision to this office. During the mediation stage of this appeal, the appellant clarified the records that it was interested in obtaining. The appellant indicated that it was not interested in obtaining the following records: pages 56-60 (denied in full pursuant to sections 8(1)(a) and 12), pages 62-63 (denied in part pursuant to section 12), page 74 (denied in part pursuant to sections 8(1)(a) and 14(1)), pages 75-76 (denied in full pursuant to section 12), page 85 (denied in part pursuant to section 14(1)), pages 86-87 (denied in part pursuant to section 12), and page 91 (denied in part pursuant to section 7). These records are, therefore, no longer at issue in this appeal. In addition, during the course of mediation, the appellant confirmed that it was only seeking information relating to the City. As a result, the appellant agreed that part of page 12 and all of pages 89 and 90 were non-responsive and no longer at issue. Finally, in the mediator's review of the records, a number of duplicate pages were identified. In order to consolidate the records at issue, the appellant agreed to the removal of the following duplicate pages from the records at issue: pages 36 and 46 (duplicate copies of page 22), page 47 (duplicate copy of page 23), page 51 (duplicate copy of page 24), pages 50 and 52 (duplicate copies of page 25), pages 45 and 49 (duplicate copies of page 26), pages 48 and 53 (duplicate copy of page 27), page 54 (duplicate copy of page 28), and page 55 (duplicate copy of page 29a). At the conclusion of the mediation stage, the appellant had narrowed the scope of its appeal to 63 pages of severed records. The City advised that it was relying upon section 8(1)(a) of the Act as the basis for denying access to these records. I, initially, sent a Notice of Inquiry to the City, which outlined the facts and issues in the appeal, and I received representations in response. The City's representations were shared in their entirety with the appellant, along with the Notice, and the appellant submitted representations in response. The appellant's representations were shared in their entirety with the City. I then sought and received reply representations from the City in respect of the appellant's submissions. I then sought further representations from both the City and the appellant simultaneously on certain additional outstanding issues. RECORDS: There are 65 records at issue in this appeal consisting of tables (relating to RLC locations), handwritten notes (with reference to RLC locations), work orders (relating to the length of time colours are displayed at traffic lights at particular locations), computer printouts (relating to amber timing results at particular locations), internal e-mails (containing RLC location information). DISCUSSION: INTERFERENCE WITH A LAW ENFORCEMENT MATTER Introduction The City claims that section 8(1)(a) applies to the records. This section reads: A head may refuse to disclose a record if the disclosure could reasonably be expected to, interfere with a law enforcement matter; Thus, the City must demonstrate the following for section 8(1)(a) to apply: (i) the red light camera program qualifies as "law enforcement"; (ii) there is a "matter" in existence; and (iii) disclosure of the records could reasonably be expected to interfere with the law enforcement matter. Does the City's RLC program qualify as "law enforcement"? For a record to qualify for exemption under this section, the "matter" reflected in the record must relate to "law enforcement" as that term is defined in section 2(1) of the Act . The words "law enforcement" are defined in section 2(1) of the Act as follows: "law enforcement"means, (a) policing, (b) investigations or inspections that lead or could lead to proceedings in a court or tribunal if a penalty or sanction could be imposed in those proceedings, and (c) the conduct of proceedings referred to in clause (b); The City states in its representations: The [RLC] Project is designed to increase compliance with the Highway Traffic Act , specifically with Section 144, Traffic control signals and pedestrian control signals. The use of RLCs is governed by Part XIV.2 of the HTA , as well as Ontario Regulation 277/99. Increasing compliance with, or preventing violations of, is one of the definitions of "policing". In Section 2 of the [ Act ] "law enforcement" is defined, in part, as "policing". Merriam-Webster's on-line dictionary (http://www.m-w.com/) defines policing, in part, as "to supervise the operation, execution, or administration of to prevent or detect and prosecute violations of rules and regulations" (emphasis added). As the purpose of the RLC project is to prevent and detect violations of Section 144 of the HTA , it

Decision Content

ORDER MO-1578

 

Appeal MA-010331-1

 

City of Hamilton

NATURE OF THE APPEAL:

 

This appeal concerns a decision of the City of Hamilton (the City) made pursuant to the provisions of the Municipal Freedom of Information and Protection of Privacy Act (the Act).  The requester (now the appellant) had sought access to records regarding red light cameras (RLCs) and the amount of time a yellow light is displayed at a traffic light.  The appellant concurrently submitted a second request to the City seeking access to records regarding the selection criteria used to determine the placement of RLCs in the City.  As both requests seek similar information, the City proposed that the two requests be treated as a single request.  Subsequently, the appellant clarified its request, advising that it was only interested in information relating to the length of time a yellow light is displayed on a traffic light, as this pertains to RLC settings, and the criteria used for the selection of RLC sites.

 

The City issued a fee estimate for the costs associated with its search for records responsive to the appellant’s request and the photocopying of the records.  The City, subsequently, issued a decision letter in which it advised that it had located 415 responsive records, including e-mails, meeting minutes and agendas, statistical data, timing sheets, reports to council and correspondence.  The City granted partial access to the responsive records.  The City claimed that seven records, described as e-mails containing legal advice, were exempt in their entirety, pursuant to section 12 of the Act.  The City claimed that 86 records, consisting of two e-mails containing personal information, one page of minutes from a steering group meeting containing recommendations, three e-mails containing legal advice, and 80 records containing locations of RLCs, or considered locations, were partially exempt.  In respect of the 86 records, the City relied, respectively, upon section 14(1) (personal information), section 7(1) (advice or recommendations), section 12 (solicitor-client privilege), and section 8(1)(a) (law enforcement matter), of the Act.  The City indicated that one RLC location was already in the public domain and, therefore, reference to this location was disclosed.  In its decision letter, the City also issued its final fee calculation pursuant to section 45 of the Act.

 

The appellant appealed the City’s decision to this office.

 

During the mediation stage of this appeal, the appellant clarified the records that it was interested in obtaining.  The appellant indicated that it was not interested in obtaining the following records:  pages 56-60 (denied in full pursuant to sections 8(1)(a) and 12), pages 62-63 (denied in part pursuant to section 12), page 74 (denied in part pursuant to sections 8(1)(a) and 14(1)), pages 75-76 (denied in full pursuant to section 12), page 85 (denied in part pursuant to section 14(1)), pages 86-87 (denied in part pursuant to section 12), and page 91 (denied in part pursuant to section 7).  These records are, therefore, no longer at issue in this appeal.  In addition, during the course of mediation, the appellant confirmed that it was only seeking information relating to the City.  As a result, the appellant agreed that part of page 12 and all of pages 89 and 90 were non-responsive and no longer at issue.  Finally, in the mediator’s review of the records, a number of duplicate pages were identified.  In order to consolidate the records at issue, the appellant agreed to the removal of the following duplicate pages from the records at issue:  pages 36 and 46 (duplicate copies of page 22), page 47 (duplicate copy of page 23), page 51 (duplicate copy of page 24), pages 50 and 52 (duplicate copies of page 25), pages 45 and 49 (duplicate copies of page 26), pages 48 and 53 (duplicate copy of page 27), page 54 (duplicate copy of page 28), and page 55 (duplicate copy of page 29a).

 

At the conclusion of the mediation stage, the appellant had narrowed the scope of its appeal to 63 pages of severed records.  The City advised that it was relying upon section 8(1)(a) of the Act as the basis for denying access to these records.

 

I, initially, sent a Notice of Inquiry to the City, which outlined the facts and issues in the appeal, and I received representations in response.  The City’s representations were shared in their entirety with the appellant, along with the Notice, and the appellant submitted representations in response.  The appellant’s representations were shared in their entirety with the City.  I then sought and received reply representations from the City in respect of the appellant’s submissions.  I then sought further representations from both the City and the appellant simultaneously on certain additional outstanding issues.

 

RECORDS:

 

There are 65 records at issue in this appeal consisting of tables (relating to RLC locations), handwritten notes (with reference to RLC locations), work orders (relating to the length of time colours are displayed at traffic lights at particular locations), computer printouts (relating to amber timing results at particular locations), internal e-mails (containing RLC location information).

 

DISCUSSION:

 

INTERFERENCE WITH A LAW ENFORCEMENT MATTER

 

Introduction

 

The City claims that section 8(1)(a) applies to the records.  This section reads:

 

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

 

interfere with a law enforcement matter;

 

Thus, the City must demonstrate the following for section 8(1)(a) to apply:

 

(i)         the red light camera program qualifies as “law enforcement”;

 

(ii)        there is a “matter” in existence; and

 

(iii)       disclosure of the records could reasonably be expected to interfere with the law enforcement matter.

 

 

 

 

Does the City’s RLC program qualify as “law enforcement”?

 

For a record to qualify for exemption under this section, the “matter” reflected in the record must relate to “law enforcement” as that term is defined in section 2(1) of the Act.

 

The words “law enforcement” are defined in section 2(1) of the Act as follows:

 

“law enforcement”means,

 

(a)                policing,

 

(b)        investigations or inspections that lead or could lead to proceedings in a court or tribunal if a penalty or sanction could be imposed in those proceedings, and

 

(c)        the conduct of proceedings referred to in clause (b);

 

The [RLC] Project is designed to increase compliance with the Highway Traffic Act, specifically with Section 144, Traffic control signals and pedestrian control signals.  The use of RLCs is governed by Part XIV.2 of the HTA, as well as Ontario Regulation 277/99.  Increasing compliance with, or preventing violations of, is one of the definitions of “policing”.  In Section 2 of the [Act] “law enforcement” is defined, in part, as “policing”.  Merriam-Webster’s on-line dictionary (www.m-w.com) defines policing, in part, as “to supervise the operation, execution, or administration of to prevent or detect and prosecute violations of rules and regulations” (emphasis added).  As the purpose of the RLC project is to prevent and detect violations of Section 144 of the HTA, it clearly meets the definition of law enforcement set out in [the Act].

                The Police submit the following representations regarding sections 8(1)(a) and (b):

 

The [Police Service] is required to follow our Policies and Procedures.  One such Policy and Procedure is the Police Orders Protocol.  Part of this Procedure deals with Reproduction, Use and Security of Police Orders.  It states that Police Orders shall not be made available to persons outside the employ of the [Police] without the consent of the Chief of Police and subject to the provisions of [the Act].

 

When a request is then made pursuant to [the Act] for Policies and Procedures of this Police Service, the policy would then [be] reviewed to ascertain if that individual policy would be available to the public or if there were specific requirements for the protection of the information.

 

For all these reasons, it is the submission of the Police Service that disclosure of the record in issue could reasonably be expected to interfere with a potential law enforcement matter.

 

The representations provided by the Police do not deal with any current or ongoing investigation of criminal activity.  The Police in fact acknowledge that any possible interference associated with disclosure of the procedures would relate to potential rather than ongoing investigations.  Past orders have made it clear that sections 8(1)(a) and (b) only apply in the context of ongoing investigations.  Accordingly, I find that disclosure of the record could not reasonably be expected to interfere with a current and ongoing law enforcement matter and/or investigation and, therefore, the record does not qualify for exemption under either section 8(1)(a) or section 8(1)(b).

 

There are some obvious differences between the type of information at issue between our current appeal and the appeal described in [Order MO-1262].  The material withheld by the police relates to a procedure to be followed in the event of an alcohol related offence.  The information itself does not deal with a specific incident or series of incidents, nor with the prevention of such incidents (as far as one can tell by reading the description and representations provided by the police), but with what should be done in event of such an incident.

 

In the current appeal, the information at issue relates directly to on-going law enforcement matters.

.  .  .  .  .

. . . [T]he RLC program began in November of 2000, and was initially scheduled to continue to November of 2002.  The date of this program has been extended an additional two years, as approved by Hamilton City Council on July 10, 2002 and authorized by the Province of Ontario in the form of Bill 149.  The Bill, as it reads in its current form (first reading of this bill has occurred), would permit the program to be extended even further, should the Lieutenant Governor issue a proclamation to that effect prior to November 20, 2004.  Further, as these cameras (there are [a specified number of] cameras which rotate between [a specified number of] locations) are in operation 24 hours a day, 7 days a week, the “law enforcement” is clearly on-going.

 

However, the information at issue in this appeal is not procedural information, it is the actual locations of the RLCs . . .

 

Order MO-1262 also speaks to Section 8(1)(c) of MFIPPA.  While our office has not claimed this exemption in this appeal, we would like to point out that the RLC locations are not considered to be public knowledge, as the policies and procedures of the police in Order MO-1262 are considered to be.  To date, the City has only publicized one location for the purposes of promoting the program. The City has not published the other . . . locations on its web site, nor in any other material issued from the City.  The one publicized location was not severed from the records released to the requestor.

 

In summation, in the opinion of the City, Order MO-1262 does not appear to be a relevant consideration given the nature of the information at issue in this appeal. The order deals with records related to procedures and policies, while this appeal relates to information directly linked to law enforcement operations . . .

The words “could reasonably be expected to” appear in the preamble of section 14(1), as well as in several other exemptions under the Act dealing with a wide variety of anticipated “harms”. In the case of most of these exemptions, in order to establish that the particular harm in question “could reasonably be expected” to result from disclosure of a record, the party with the burden of proof must provide “detailed and convincing” evidence to establish a “reasonable expectation of probable harm” [see Order P-373, two court decisions on judicial review of that order in Ontario (Workers’ Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464 at 476 (C.A.), reversing (1995), 23 O.R. (3d) 31 at 40 (Div. Ct.), and Ontario (Minister of Labour) v. Big Canoe, [1999] O.J. No. 4560 (C.A.), affirming (June 2, 1998), Toronto Doc. 28/98 (Div. Ct.)].

I concur with the above findings.  In order to establish the requirements of section 8(1)(a), the City must provide detailed and convincing evidence sufficient to establish a reasonable expectation of probable harm as described in this section.

The former Region of Hamilton-Wentworth (now the City of Hamilton) spent considerable time deciding where the cameras should be located.  They were not simply placed at intersections with the highest rates of Red Light violations and/or the highest rates of right-angle collisions (the type of collision most commonly associated with red light violations), but were purposely located throughout the City in order to maximize the spill-over or halo effect of the RLCs.  This spill over effect […] means that when motorists are aware of RLCs, but not their locations, they modify their driving habits at all red lights, not just intersections with RLCs installed.  By careful selection of RLC location, the City has attempted to maximize the spill over effect of the RLC program, thus preventing a greater number of violations and/or collisions resulting from these violations.  By releasing the locations to the public, either through signing the RLC sites, providing the information on a web site, or to the media, this spill over effect would be minimized, if not negated entirely.  Drivers aware of the RLC locations will have impetus to change their driving habits only at the RLC sites, not at all signalized intersections in the City.  This would defeat the purpose of the City’s program.


The document references two different studies (Bodinnar (1993) and (Chin (1989)) which have argued that signing RLC sites has the effect of reducing violations at the sites themselves, but have no effect on non-camera intersections. Bodinnar advocated the generalized signing regarding RLCs, rather than identifying the actual locations.  The City of Hamilton, which does not have RLC signs, has aggressively advertised the City’s RLC program, via print, radio and internet mediums, which one should expect to have the same effect of the generalized signing advocated by Bodinnar.

 

It is the City’s position that releasing the locations to the requester, who is a reporter for the major daily newspaper in the City, if published, would have the same effect as signing the actual RLC locations.  As our office has pointed out in previous representations, it [is] the intention of the program to reduce red light violations and red light related collisions across the City.  As placing RLCs at all signalized intersections is not economically feasible (the RLC program runs at a net loss with […] eight locations), the City is relying on generalized deterrence, also referred to as the halo or spill over effect of RLCs.  As Chin and Bodinnar have indicated, a RLC program does not achieve a general deterrence where the RLC sites are public.

 

Further, while South et al. and Hillier et al. have argued “the maximum deterrent effect would only occur if the presence of the devices were signalized in some way”, this maximum deterrence occurs only at RLC sites.  As indicated in the City’s initial representations, the overall benefit to the City of Hamilton is greater (that is, fewer over all red light violations and fewer collisions) if all signalized intersections achieve a moderate increase in compliance than if the eight RLC locations receive 100% compliance.

 

Finally, the document makes reference to an argument put forward by Schnerring (1993).  This position that general deterrence is not as desirable as site specific deterrence as sites are selected on the basis of accident history.  It is important to note that the City of Hamilton used more than site accident history as a criteria for RLC location selection.  As might be expected, the intersections with high accident histories are located within the downtown core, an area with much heavier traffic than more suburban and rural areas.  In order to maximize the general deterrence of the RLCs, a number of sites outside of the downtown were selected in order to prevent motorists from being wary only when in the downtown.

 

In the City’s opinion, this Law Enforcement paper reinforces the arguments in favour of exempting the RLC locations submitted in earlier representations and partially reiterated here.

This data undermines the city of Hamilton’s contention that publicizing [RLC] locations would cause motorists to flout the law at other intersections.

 

Hamilton officials want the [RLC] locations concealed, so the onus is on them to demonstrate the basis of their claim.  And at very best, the research paper Traffic Law Enforcement:  A Review of the Literature finds a lack of consensus among various studies.

 

Upon closer examination, the studies endorsing public awareness of camera locations — MacLean (1985), Hillier (1993), and South et al (1989) - appear supported by experience-based research, not hypothesis.

 

Bodinnar (1993) demurs, but then qualifies its position by stating the heart of the issue has to do with the strategy of public signage.  There is no discussion about the merits of disseminating the locations to the media for the one-time or very infrequent public examination of the effectiveness of [RLCs] at key intersections.

ORDER:

 

1.          I order the City to disclose, in full, to the appellant all 65 records at issue.  Disclosure is to be made by the City to the appellant by November 1, 2002.

 

2.         I reserve the right to require the City to provide me with a copy of the records disclosed to the appellant pursuant to Provision 1 of this order, only upon request.

 

 

 

Original signed by:                                                                        October 10, 2002                                   

Bernard Morrow
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