In support of their contention that the information in the record is subject to the presumption in section 14(3)(b), the Police submit that:

The information contained in the memorandum from the Crown Attorney was, at the time, directly related to an “ongoing” investigation, not only surrounding a Criminal Charge also the potential for a charge of Misconduct under the Police Services Act.  In addition, the potential for civil litigation is still outstanding as a person was unlawfully arrested and not properly before the courts.

In my view, the presumption in section 14(3)(b) has no application to the record at issue.  At the time the record was created, the Police investigation into a possible violation of law had been concluded and the contemplated charge was not proceeded with by the Crown.  The investigation had, accordingly, been completed at the time the record was prepared by affected person #1.  Accordingly, I find that the record was not compiled and did not form part of the law enforcement investigation, as is required under section 14(3)(b).

Considerations under Sections 14(2)(f), (h) and (i)

The Police submit that the information contained in the record is “highly sensitive” within the meaning of section 14(2)(f) as it contains the author’s “unsubstantiated opinion regarding the competencies of at least two members of the Belleville Police Service.” 

The Police also indicate that the record was received from affected person #1 “in confidence”, who received assurances from the Police that it would “not be disclosed”.  Accordingly, the Police argue that the factor listed in section 14(2)(h) is relevant in determining whether the disclosure of the record would result in an unjustified invasion of personal privacy.

The Police also submit that section 14(2)(i) is applicable to the record, although they do not provide any basis for this contention.

The appellant indicates that he does not intend to initiate any legal action against affected person #1 should the record be disclosed to him.  He also expresses concerns that negative comments “could be reflected in my employment record” as a result of this memorandum being received by the Police.

As stated above, I did not receive any submissions from affected person #1 despite providing her with an opportunity to do so at both the initial representations and reply stages.  This individual’s views on the disclosure of the personal information in the record would have been very helpful.

Findings

The record contains the personal information of the affected parties and the appellant.  Under section 38(b), where none of the presumptions under section 14(3) are found to apply, I am required to undertake a balancing exercise being mindful of the listed considerations contained in section 14(2), as well as any unlisted factors, to determine whether disclosure would result in an unjustified invasion of personal privacy.

In my view, the record includes information which qualifies as “highly sensitive” within the meaning of section 14(2)(f).  The record contains the author’s opinions regarding the actions and motivations of the appellant and affected person #2 and uses very strong language in doing so.  I find that this is a significant factor weighing against the disclosure of the record.

However, I also find that the Police have not provided sufficient evidence to substantiate their contention that the record was submitted with an expectation that it would be treated confidentially, within the meaning of section 14(2)(h).  Neither the record itself nor the representations provided by the Police explicitly indicate that the author of the memorandum had a reasonably-held expectation that it would be treated confidentially.  On the contrary, the contents of the memorandum give every indication that its author expected the Police to acknowledge her complaint and take specific action against the officers named therein.  Therefore, I find that section 14(2)(h) is a not a relevant factor favouring the non-disclosure of the record.

The Police have not provided any submissions on the application of section 14(2)(i) and I have not heard from affected person #1 on this point.  Therefore, I am unable to give any weight whatsoever to this factor.

The appellant relies on the fact that affected person #2 has consented to the disclosure of his personal information to the appellant.  He also emphasizes his right of access to information relating to himself under section 4(1)(a).  The appellant also takes the position that he ought to be entitled to information relating to himself, particularly since it may have an adverse effect on his employment situation.  I find these to be significant considerations favouring the disclosure of the information contained in the record relating only to the appellant or to affected person #2.

I note that one of the purposes of the Act, set out in section 1(b), is to provide individuals with a right of access to personal information about themselves, while protecting the privacy of others.  Balancing the appellant’s right of access to information about himself against affected person #1’s right of privacy, I find that the disclosure of the personal information contained in the record which relates only to affected person #1 would result in an unjustified invasion of the personal privacy of this individual.  However, I conclude that the exercise of the appellant’s right of access to information about himself and affected person #2, who has consented to its disclosure, would not result in an unjustified invasion of the personal privacy of affected person #1.

I conclude my discussion of the invasion of privacy exemption by indicating that only the final portions of the record which contain only the personal information of affected person #1 qualify for exemption under section 38(b).  The remainder of the record does not qualify for exemption under this section.  I have provided the Police’s Freedom of Information and Protection of Privacy Co-ordinator with a highlighted copy of the record in which I have indicated those portions of the record which are exempt from disclosure under section 38(b).  I will now consider the application of the other exemptions claimed by the Police to apply to the record.

LAW ENFORCEMENT

The Police also rely on the discretionary exemption in section 8(2)(c), taken in conjunction with section 38(a) of the Act to deny access to the record.  Section 8(2)(c) states:

A head may refuse to disclose a record,

            that is a law enforcement record if the disclosure could reasonably be expected to expose the author of the record or any person who has been quoted or paraphrased in the record to civil liability; or

Section 8 of the Act requires that the expectation of one of the enumerated harms coming to pass, should a record be disclosed, not be fanciful, imaginary or contrived, but rather one that is based on reason.  An institution relying on the section 8 exemption bears the onus of providing sufficient evidence to substantiate the reasonableness of the expected harm(s) by virtue of section 42 of the Act. [Order P-188]

The requirement in Order 188 that the expectation of harm must be “based on reason” means that there must be some logical connection between disclosure and the potential harm which the institution seeks to avoid by applying the exemption. [Order P-948]

In support of its contention that the record is exempt from disclosure under section 8(2)(c), the Police simply state that “disclosure could and would potentially expose the author (in this case the Crown Attorney) to civil liability.”

In my view, the Police have not provided me with the kind of “sufficient evidence to substantiate the reasonableness of the expected harm” which is required under section 8(2)(c).  The Police have not demonstrated a logical connection between the disclosure of the record and the potential harm which it seeks to avoid.  I find, therefore, that sections 8(2)(c) and 38(a) have no application to the record at issue.

RELATIONS WITH OTHER GOVERNMENTS

The Police also rely on the discretionary exemption in section 9(1)(d), taken in conjunction with section 38(a) of the Act, to support its position that the record ought not to be disclosed.  The relevant portions of section 9(1) state:

A head shall refuse to disclose a record if the disclosure could reasonably be expected to reveal information the institution has received in confidence from,

(a)        the Government of Canada;

(b)        the Government of Ontario or the government of a province or territory in Canada;

(c)        the government of a foreign country or state;

(d)       an agency of a government referred to in clause (a), (b) or (c);

In support of this contention, the Police state:

The memo in question was issued and endorsed by the Crown Attorney of the County of Hastings, an agent of the Ministry of the Attorney General.  Section 9(2) consent was sought and refused.

The decision not to disclose considered several factors, including but not limited to, the potential for civil litigation by the officer or officers, the potential for action of false arrest by the person arrested and detained, and the potential for misconduct at the time based on the communication of the Crown Attorney.

It is not disputed that the record was received by the Police from affected person #1, who is a Crown Attorney employed by the Ministry of the Attorney General, an agency of the Government of Ontario.  In my discussion of the consideration in section 14(2)(h) above, I found that I was not provided with sufficient evidence to demonstrate that the record was received by the Police from the Crown Attorney in confidence.  I reach the same conclusion with respect to the requirements of section 9(1) and find that this section does not apply to exempt the record from disclosure as I have not been provided with sufficient evidence to reach a finding that it was provided in confidence to the Police.  As a result, I find that sections 9(1) and 38(a) have no application to the record at issue.

ORDER:

1.                    I order the Police to disclose to the appellant those portions of the record which are not highlighted on the copy of the record which I have provided to the Freedom of Information and Protection of Privacy Co-ordinator.  The Police are ordered to provide the appellant with a copy of those portions of the record which are not highlighted by July 2, 2003 but not before June 27, 2003.

3.         In order to verify compliance with Order Provision 1, I reserve the right to require the Police to provide me with a copy of the record which is disclosed to the appellant.

Original signed by:                                                                                     May 27, 2003                  

Donald Hale