Access to Information Orders
Decision Information
This appeal concerns a decision of the Ministry of the Attorney General (the Ministry) made pursuant to the provisions of the Freedom of Information and Protection of Privacy Act (the Act). The requester (now the appellant) sought access to information in connection with an investigation carried out by the Special Investigations Unit (SIU) of members of the Guelph Police Service (GPS) and Hamilton-Wentworth Regional Police Service (now the Hamilton Police Service) (HPS). By way of background, the SIU is responsible for investigating the circumstances surrounding serious injuries or deaths that occur in situations involving the police. The focus of this investigation was the circumstances surrounding a heart attack suffered by the appellant while in the custody of the police. Subsequent to the completion of the investigation, the Director of the SIU decided that criminal charges were not warranted in this case.
The Ministry granted partial access to the responsive records, but denied access to other parts of the records pursuant to sections 21 (invasion of privacy) and 14(2)(a) (law enforcement report) of the Act.
The appellant appealed the Ministry's decision.
Decision Content
NATURE OF THE APPEAL:
This appeal concerns a decision of the Ministry of the Attorney General (the Ministry) made pursuant to the provisions of the Freedom of Information and Protection of Privacy Act (the Act). The requester (now the appellant) sought access to information in connection with an investigation carried out by the Special Investigations Unit (SIU) of members of the Guelph Police Service (GPS) and Hamilton-Wentworth Regional Police Service (now the Hamilton Police Service) (HPS). By way of background, the SIU is responsible for investigating the circumstances surrounding serious injuries or deaths that occur in situations involving the police. The focus of this investigation was the circumstances surrounding a heart attack suffered by the appellant while in the custody of the police. Subsequent to the completion of the investigation, the Director of the SIU decided that criminal charges were not warranted in this case.
The Ministry granted partial access to the responsive records, but denied access to other parts of the records pursuant to sections 21 (invasion of privacy) and 14(2)(a) (law enforcement report) of the Act.
The appellant appealed the Ministry’s decision.
During the course of mediation, the Ministry provided the appellant with an index of records that provided a description of and the exemptions claimed for each record. In total, the Ministry identified 35 responsive records.
After reviewing the index, the appellant advised that he was no longer seeking access to Records 1 to 4, 7 and 19. Accordingly, these records are no longer at issue. In its initial decision, the Ministry granted access to Record 26, in its entirety, and so this record is also not at issue.
Mediation was not successful in resolving all of the issues in the appeal, so the matter was streamed to the adjudication stage of the process.
This office sent a Notice of Inquiry initially to the Ministry regarding the possible application of sections 21 and 14(2)(a). The Ministry did not raise the application of section 49 in its decision. However, in light of the fact that the records appeared to contain the appellant’s personal information, the Ministry was asked to comment on the application of section 49(b) read in conjunction with section 21 and section 49(a) read in conjunction with section 14(2)(a). The Ministry submitted representations in response. This office then sent a Notice of Inquiry along with the Ministry’s representations to the appellant, who submitted representations in response. I then sought representations from 13 police officers and three doctors who are affected parties in this appeal and I included with my Notice of Inquiry a copy of the appellant’s representations. I received representations from the Hamilton Police Service (HPS) on behalf of six police officers, the Guelph Police Service (GPS) on behalf of seven police officers, and one doctor. I then sought reply representations from the appellant and the Ministry regarding a new issue raised by the HPS [section 65(6) (application of the Act)], the submissions of the HPS and the doctor regarding section 21, and the submissions of the GPS regarding section 14(1)(h) (confiscation by a peace officer). In its representations, the Ministry also raised the application of section 14(2)(c) (exposure to civil liability).
RECORDS:
The following records are at issue: 5-1, 6-1, 8-1 to 8-5, 9-1 to 9-3, 10-1 to 10-2, 11-1 to 11-2, 12-1, 13-1, 14-1, 15-1 to 15-2, 16-1 to 16-9, 17-1 to 17-5, 18-1 to 18-4, 20-1 to 20-3, 21-1 to 21-2, 22-1 to 22-3, 23-1 to 23-2, 24-1 to 24-4, 25-1 to 25-23 and 27 to 35. All but Records 27 through 35 are in printed form and consist of administrative forms, witness statements, correspondence, police officer’s notes and SIU reports. The use of the word “report” is based on the terminology used in these records themselves and in the index provided by the Ministry and does not reflect a conclusion by me that these records constitute “reports” within the meaning of section 14(2)(a) of the Act (see discussion below). Records 27 through 35 are audiotaped witness interviews conducted by the SIU.
CONCLUSION:
I uphold the Ministry’s decision to withhold Records 8-5, 9-3, 10-2, 11-2, 13-1, 14-1, 20-2 to 20-3, 21-2, 22-1 to 22-3, 23-1 to 23-3, 24-1 to 24-4 and 25-2 to 25-23 in their entirety.
I order disclosure of Records 5-1, 15-1 to 15-2, 16-2, 16-4, 16-6, 16-8 to 16-9, 17-2, 17-5, 18-2, 18-4, 20-1, 21-1 and 25-1 in their entirety.
I order disclosure of Records 6-1, 8-1 to 8-4, 9-1 to 9-2, 10-1, 11-1, 12-1, 16-1, 16-3, 16-5, 16-7, 17-1, 17-3, 18-1 and 18-3 with the exception of exempt portions which shall be severed from the records.
DISCUSSION:
APPLICATION OF THE ACT
The HPS officers take the position that the Act does not apply to the records that relate to them, by virtue of section 65(6)1 and 3 of the Act.
Introduction
If section 65(6) applies to the records, and none of the exceptions found in section 65(7) applies, section 65(6) has the effect of excluding the records from the scope of the Act.
Section 65(6)1
Introduction
Section 65(6)1 states:
Subject to subsection (7), this Act does not apply to records collected, prepared, maintained or used by or on behalf of an institution in relation to any of the following:
1. Proceedings or anticipated proceedings before a court, tribunal or other entity relating to labour relations or to the employment of a person by the institution.
In order for a record to fall within the scope of section 65(6)1, the institution must establish that:
1. the record was collected, prepared, maintained or used by the institution or on its behalf; and
2. this collection, preparation, maintenance or usage was in relation to proceedings or anticipated proceedings before a court, tribunal or other entity; and
3. these proceedings or anticipated proceedings relate to labour relations or to the employment of a person by the institution.
Representations
The HPS officers state:
The records were collected, prepared, maintained or used by the Institution in relation to proceedings before a tribunal relating to the employment of a person by the Institution.
The records at issue form part of an S.I.U. Investigation. When the [SIU] launches an investigation the [HPS] has a mandate that we must assist in the investigation. The S.I.U. investigates and only deals with criminal charges. The [HPS] also launches a Professional Standards Branch Investigation that parallels the S.I.U. Investigation and investigates any provincial offences pursuant to the Police Services Act and breaches in internal Policies and Procedures. Two of the Policies and Procedures that relate to SIU investigation are the Hamilton Police Service Discipline Procedure and the Special Investigations Unit Procedure.
In this case the information contained about the officers in the SIU Investigation was collected pursuant to the Police Services Act. Disciplinary hearings are conducted under Part V of the current Police Services Act (enacted October 10, 1997) consequent to an investigation into a “complaint”. Complaints relating to the conduct of a police officer may be initiated by a member of the public or by the chief of police, and must be “employment related” in the sense that an officer cannot be found guilty of misconduct if there is no connection between the conduct complained of and the occupational requirements for a police officer or the reputation of the police force. (reference: s.74(2) Police Services Act). This parallel investigation also provides the S.I.U. investigators with required information.
It is the submission of the officers that the information sought was collected, prepared, maintained and used by the Institution in carrying out its statutory disciplinary/administrative responsibilities under the Police Services Act. The proceedings by the S.I.U. and the penalties both clearly relate to the employment of the officers by the Institution, the former being based on employment related behaviour and the latter involving, among other things, criminal code charges.
The Ministry states in response:
[T]he Ministry rejects the proposition that the records in question were collected, prepared, maintained or used by or on behalf of the SIU in relation to proceedings or anticipated proceedings before a court, tribunal or other entity relating to labour relations or to the employment of a person by the Ministry. […T]he SIU is a law enforcement agency that conducts criminal investigations surrounding the circumstances of incidents that fall within its statutory jurisdiction in order to determine whether a criminal charge or charges is warranted against a subject police officer or officers. The records herein question were collected, prepared, maintained or used, as in all SIU cases, for the exclusive purpose of discharging that investigative mandate. Whatever employment or labour relations implications may arise in relation to the affected parties with respect to the SIU’s collection, preparation, maintenance or use of these records occur in forums outside of the SIU’s jurisdictional sphere and are irrelevant to the SIU’s statutory mandate.
The HPS […] asserts in the fourth paragraph of its representations concerning the section 65(6)1 issue that it “is the submission of the officers that the information sought was collected, prepared, maintained and used by the Institution in carrying out its statutory disciplinary/administrative responsibilities under the Police Services Act.” Again, with respect to the use of the word “Institution” in this paragraph, the Ministry makes the same commentary as in paragraph 2 of these reply representations.
The HPS [...] further asserts in the fourth paragraph of its representations concerning the section 65(6)1 issue that the “proceedings by the S.I.U. and the penalties both clearly relate to the employment of the officers by the Institution, the former being based on employment related behaviour and the latter, among other things, criminal code charges.” Firstly, the SIU conducts investigations of incidents that fall within its statutory jurisdiction. Charges are laid by the SIU where, in the opinion of the SIU’s Director, there are reasonable grounds to believe that an officer or officers have committed a criminal offence or offences in relation to the incident investigated. In the event a charge is laid by the SIU, the matter is referred to the Crown Attorney for prosecution. Whatever employment or labour relations implications may arise in relation to the affected parties with respect to the SIU’s collection, preparation, maintenance or use of these records, or in the event a criminal charge is laid by the SIU, occur in forums outside of the SIU’s jurisdictional sphere and are irrelevant to the SIU’s statutory mandate. Secondly, it would appear in this instance that the use of the word “Institution” denotes the HPS. Of course, it bears only noting that the records in question relate to individuals who are employed officers of the HPS, not the SIU. Finally, the SIU’s investigative jurisdiction is not expressly limited to on-duty conduct. In fact, the SIU does investigate off-duty conduct of officers in certain circumstances, such as where an officer has invoked his or her police officer status or used police equipment during the course of an incident.
The appellant also submitted representations regarding section 65(6)1. The appellant states that section 65(6)1 cannot apply if the “institution” in question is the Ministry since the affected persons are not employed by the Ministry.
Findings
I accept the Ministry’s submissions. The records at issue that concern the HPS officers were collected, prepared, maintained or used by the SIU for the exclusive purpose of discharging its investigative mandate in order to determine whether criminal charges are warranted against a subject police officer or officers. I agree that whatever employment or labour relations implications may arise in relation to the police officers as a result of the SIU’s collection, preparation, maintenance or use of these records occur in forums outside of the SIU’s jurisdictional sphere and are irrelevant to the SIU’s statutory mandate. While it may be possible for records created or compiled by the SIU to be later collected, maintained, used or disclosed by the employer police force in relation to PSA disciplinary proceedings, the vague assertions of the HPS officers in this regard, without specific facts relating to this case, fall short of the requirements of section 65(6)1. Accordingly, I find that section 65(6)1 does not apply to remove the records from the application of the Act.
Section 65(6)3
Introduction
Section 65(6)3 of the Act states:
Subject to subsection (7), this Act does not apply to records collected, prepared, maintained or used by or on behalf of an institution in relation to any of the following:
3. Meetings, consultations, discussions or communications about labour relations or employment‑related matters in which the institution has an interest.
In order to fall within the scope of paragraph 3 of section 65(6), the institution must establish that:
1. the records were collected, prepared, maintained or used by the institution or on its behalf; and
2. this collection, preparation, maintenance or usage was in relation to meetings, consultations, discussions or communications; and
3. these meetings, consultations, discussions or communications are about labour relations or employment-related matters in which the institution has an interest.
Representations
The HPS officers state:
It is the position of the officers that for the reasons described [in the officer’s submissions regarding section 65(6)1], the information requested was clearly collected, prepared, maintained and used by the Institution in relation to communications about employment-related matters in which the Institution has an interest.
Furthermore, the Police Service, as employer, as well as the officers have an inherent interest in internal discipline and in the results thereof. A finding of guilt in relation to a disciplinary misconduct has the potential to subject the Institution to significant legal consequences, both civilly and otherwise. For example, a finding of misconduct may form the basis for a civil lawsuit or a Human Rights claim against the officer and the Institution. In fact the appellant has launched a civil suit against the Police Service and the involved officers.
The Ministry states in response:
The HPS […] asserts in […] its representations concerning the section 65(6)3 issue that “the information requested was clearly collected, prepared, maintained and used by the Institution in relation to communications about employment-related matters in which the Institution has an interest.” With respect to the use of the word “Institution” in this paragraph, the Ministry makes the same commentary as in [its representations pertaining to section 65(6)1]. [I]n the event the word “Institution” is being used to denote the SIU, the Ministry denies that the records in question were collected, prepared, maintained or used by or on behalf of the SIU in relation to communications about employment-related matters in which the SIU has an interest.
The appellant states that section 65(6)3 cannot apply since the records at issue were not collected, prepared, maintained or used by the HPS but rather by the SIU.
Findings
Similar to my findings above under section 65(6)1, I conclude that section 65(6)3 does not apply. The SIU collected, prepared, maintained or used the records in relation to its investigation into possible criminal offences, and not for an employment-related purpose. In addition, the generalized assertions of the HPS officers fall short of establishing that the HPS collected, prepared, maintained or used the records in relation to any employment-related matter.
PERSONAL INFORMATION
Introduction
In order to assess whether section 49(b) in conjunction with section 21 applies to deny the appellant access to the records at issue, I must first determine whether the records contain personal information, and to whom that personal information relates.
Under section 2(1) of the Act, “personal information” is defined, in part, as recorded information about an identifiable individual, including any identifying number assigned to the individual and the individual’s name where it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual.
Previous decisions of this office have held that information about an individual in his or her professional or employment capacity does not constitute that individual’s personal information where the information relates to the individual’s employment responsibilities or position (see Reconsideration Order R-980015 and Order PO-1663). However, where information about the individual involves an evaluation of his or her performance as an employee or an investigation into his or her conduct as an employee, then these references are considered to be the individual’s personal information (see Orders P-721, P-939, P-1318 and PO-1772). In Order PO-1912, information about OPP and other police officers in records originally created in the course of these officers’ professional duties was found to constitute their personal information where the conduct of the officers was later called into question by a lawsuit.
Representations
The Ministry submits that the records at issue contain the personal information of persons other than the appellant including a number of police officers who had interaction with the appellant during the time in question, a number of civilian witnesses with information regarding the incident investigated by the SIU, and other persons involved in the investigation. The Ministry further states that the personal information contained in the records includes information that falls under the following subsections of section 2(1) of the Act: age, sex, marital and family status [section 2(1)(a)], medical history [section 2(1)(b)], identifying numbers [section 2(1)(c)], addresses and telephone numbers [section 2(1)(d)], the personal opinions or views of witnesses other than the appellant [section 2(1)(e)], and the names of individuals together with other personal information about them or in circumstances where the disclosure of the name would reveal other personal information about the individual [section 2(1)(h)].
The Ministry submits that some of the records also contain information that may constitute the personal information of the appellant.
With respect to the distinction between an individual’s personal information and information associated with a person in his or her professional capacity, the Ministry relies on the reasoning in Reconsideration Order R-980015. This order draws a distinction between information or opinions that are personal to the individual with information and opinions of the individual in expressing the position of the organization he or she represents. With respect to the circumstances of this case, the Ministry states:
This information […] does not represent the views or opinions of an organization, be it public or private. It is not associated with these witnesses in their employment or professional capacity. Rather, this information is more appropriately characterized as being associated with individuals in their personal capacity and, accordingly, constitutes personal information within the meaning [of] section 2(1) of the Act.
The appellant states, in response, that the information relating to the police officers, whether contained in notes, reports or other documents, is not personal information since the appellant “… is not seeking documentation relating to the evaluation of the performance of the police officers, but rather notes generated by the police officers.”
The HPS officers submit:
The information covered by this request is clearly personal information […], in that it is information relating to the named officers. It also includes statements made by these officers when they were ordered to provide the statements. The names of the officers appear in conjunction with highly sensitive information provided by them.
Although the information starts as the information provided in an investigation by the [SIU] and is provided in their professional capacity, it goes beyond that. Previous orders held that information about an individual in his or her professional or employment capacity does not constitute that individual’s personal information where the information relates to the individual’s employment responsibilities or position. However, where information about the individual involves an evaluation of his or her performance as an employee or an investigation into his or her conduct as an employee, then these references are considered to be the individual’s personal information (Orders P-721, P939, P-1318 and P0-1772).
The GPS officers did not provide representations on this issue.
Legal counsel for the affected party doctor submits:
The statement [provided by the doctor] contains recorded information about [him], including his name and his professional standing and his personal opinions and/or views.
[The doctor] further submits that the information gathered from him was in his personal capacity, rather than in a professional or official government capacity.
Based on my review of the records and the parties’ representations, there is no doubt that the records contain the personal information of the appellant and several civilian witnesses. As well, applying the principles in the series of cases decided by this office (Orders P-721, P-939, P-1318, PO-1772 and PO-1912), I am satisfied that the information about the HPS and GPS officers, and the doctor, is their personal information. However, applying the same principles distinguishing personal and professional information to other identifiable individuals in Records 5-1, 15-2, 16-2, 16-4, 16-6, 16-8, 16-9, 17-2, 17-4, 17-5, 18-2, 18-4, 20-1 and 21-1, I find that these records do not contain the personal information of these other identifiable individuals. Record 5-1, for example, provides a chronology of events pertaining to the SIU investigation and names the lead investigator. Records 15-2, 16-9, 17-5, 20-1 and 21-1 are facsimile transmission cover sheets for SIU correspondence related to the investigation. Records 16-2, 16-4, 16-6, 16-8, 17-2, 17-4, 18-2 and 18-4 are portions of cover letters sent by SIU officials regarding the investigation. Any information about these individuals is only in relation to their activities in a professional or employment capacity.
Therefore, my findings on this issue are as follows:
1. Records 6-1, 8-1 to 8-5, 9-1 to 9-3, 10-1 to 10-2, 11-1 to 11-2, 12-1, 13-1, 14-1, 16-1, 16-3, 16-5, 16-7, 17-1, 17-3, 18-1, 18-3, 20-2 to 20-3, 21-2, 22-1 to 22-3, 23-1 to 23-2, 24-2 to 24-4, 25-2 to 25-15, 25-17 to 25-20, 25-22 to 25-23 and 27 to 35 contain the personal information of the appellant, along with other identifiable individuals including civilian witnesses, witness police officers and witness doctors.
2. Record 15-1, 25-1, 25-16 and 25-21 contain the personal information of the appellant only, and not of other individuals.
3. Records 23-3 and 24-1 contain the personal information of other identifiable individuals only.
4. Records 5-1, 15-2, 16-2, 16-4, 16-6, 16-8 to 16-9, 17-2, 17-4, 17-5, 18-2, 18-4, 20-1 and 21-1 do not contain any information that qualifies as “personal information” within the definition of that term in section 2(1) of the Act.
INVASION OF PRIVACY
Introduction
Section 47(1) of the Act gives individuals a right of access to their own personal information. Section 49 provides certain exceptions to the section 47(1) right of access. Under section 49(b) of the Act, where a record contains the personal information of both the appellant and other individuals, the Ministry has the discretion to deny the appellant access to that information if it determines that the disclosure of the information would constitute an unjustified invasion of another individual's personal privacy. On appeal, I must be satisfied that disclosure of the information would constitute an unjustified invasion of another individual’s personal privacy (see Order M-1146).
Accordingly, in this appeal I will consider whether the disclosure of the personal information in Records 6-1, 8-1 to 8-5, 9-1 to 9-3, 10-1 to 10-2, 11-1 to 11-2, 12-1, 13-1, 14-1, 16-1, 16-3, 16-5, 16-7, 17-1, 17-3, 18-1, 18-3, 20-2 to 20-3, 21-2, 22-1 to 22-3, 23-1 to 23-2, 24-2 to 24-4, 25-2 to 25-15, 25-17 to 25-20, 25-22 to 25-23 and 27 to 35 would be an unjustified invasion of the personal privacy of other individuals and is exempt from disclosure under section 49(b).
Section 49(b) of the Act introduces a balancing principle. The institution must look at the information and weigh the requester’s right of access to his or her own personal information against another individual’s right to the protection of their privacy. If the institution determines that release of the information would constitute an unjustified invasion of the other individual’s personal privacy, then section 49(b) gives the institution the discretion to deny access to the personal information of the requester.