Access to Information Orders
Decision Information
NATURE OF THE APPEAL: The Toronto Police Services Board (the Police) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to records relating to an identified complaint investigation, including polygraph test results and related information. The Police contacted the requester to clarify the request, and the requester clarified that his request was for the following: All available records of [an identified investigation]… In this investigation I was listed as a suspect in [two occurrences]. All available records of the investigation … into my [identified] complaint. … Please include results and all available information regarding the polygraph test conducted by [identified individual and location]. The Police responded to the clarified request by providing partial access to certain records responsive to item 1, and denying access to portions of them on the basis of the exemptions at sections 14 and 38(b) (invasion of privacy). Concerning item 2, the Police identified that the requested records were denied on the basis that the Act does not apply to them by virtue of the exclusion at section 52(3). The response stated: … a portion of your request dealt with records concerning [an identified file number], which is the file number assigned to the public compliant you lodged regarding the conduct of a police officer employed with the Toronto Police Service. . . . [T]he records relate to an employment-related matter; that being the complaint process regulated under the Police Services Act; and therefore, the access provisions of the [ Act ] do not apply. The appellant appealed the decision of the Police. During the mediation stage of the appeal, the appellant narrowed his appeal to include only the records relating to the investigation into his complaint against a police officer (item 2). As a result, the only remaining issue in this appeal is whether or not section 52(3) applies to the records responsive to item 2. A Notice of Inquiry was initially sent to the Police, setting out the facts and issues in the appeal, and seeking representations on whether section 52(3) applied to the records. The Police provided representations supporting their position that section 52(3)1 and 3 applied. The Notice of Inquiry was then sent to the appellant, along with a copy of the non-confidential portions of the Police's representations. The appellant provided brief representations in response. RECORDS: At issue in this appeal are records contained in the Police Services Act (PSA) complaint investigation file, including police officers' memo books, polygraph test tapes and a videotape of the polygraph. DISCUSSION: ARE THE RECORDS EXCLUDED FROM THE ACT DUE TO SECTION 52(3)1 OR 52(3)3? Introduction Section 52(3) is record-specific and fact-specific. If section 52(3) applies to the records, and none of the exceptions found in section 52(4) apply, section 52(3) has the effect of excluding records from the scope of the Act . The Police claim that the records fall within the scope of both section 52(3)1 and 52(3)3. I will examine the application of section 52(3)3, initially. Section 52(3)3 Section 52(3)3 reads: Subject to subsection (4), 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: 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 52(3), the Police must establish that: the records were collected, prepared, maintained or used by the Police or on their behalf; and this collection, preparation, maintenance or usage was in relation to meetings, consultations, discussions or communications; and these meetings, consultations, discussions or communications are about labour relations or employment-related matters in which the Police have an interest. The Police provided representations on the application of section 52(3)3. The appellant's brief representations focus on the polygraph test. He states: I believe that section 52(3) does not apply to the records at issue, as the polygraph test was a continuation of the [earlier investigation]. Section 52(4) has no application in the circumstances of this appeal. Part One of the Test Under Section 52(3)3 Concerning the first part of the test, the Police submit that the records were collected, prepared maintained and used by the Police in the course of dealing with the complaint against a named police officer and the matters arising from the investigation into the complaint. They then identify how the records were collected and used by the Police. Concerning the specifics of the polygraph test, the Police state: The Report of Investigation prepared by the Complaint Investigator, at page 5, clearly indicates that the records relating to the Polygraph examination were specifically prepared and collected to assist in the investigation of the public complaint. In addition, the results of that polygraph test were used by the Complaint Investigator in formulating his recommendations on the investigation. The Police then quote from the Report of Investigation, which states "… the complaint investigator took steps to have a polygraph authorized for the complainant". The Police take the position that the records were clearly collected, prepared and used by the institution. I agree, and find that the records at issue were collected, prepared and used by the Police, and that the first part of the test under section 52(3)3 has been satisfied. Part Two of the Test Under Section 52(3)3 The Police state that the records were collected, prepared and used by the Police to formulate recommendations on the complaint investigation and to otherwise deal with the issues, and that the collection, preparation and usage was in relation to communications concerning the complaint. I accept the Police's position that the records were collected, prepared or used by the Police in relation to communications about the complaint made against an officer. As a result, the second part of the section 52(3)3 test has been met. Part Three of the Test Under Section 52(3)3 The Police submit that the communications all relate to an employment-related matter in which the Police have an interest. They state: In Order MO-1523 Adjudicator Hale dealt with a similar matter, in that records were collected and used by [Police] personnel to investigate a complaint of conduct and then make a determination as to the propriety of the police officer's actions. He also referred to the fact that the matter had been appealed to OCCOPS. The Police then refer to the following quotes from that Order: The Police rely on the findings in Orders M-899 and M-835 where it was
Decision Content
NATURE OF THE APPEAL:
The Toronto Police Services Board (the Police) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for access to records relating to an identified complaint investigation, including polygraph test results and related information. The Police contacted the requester to clarify the request, and the requester clarified that his request was for the following:
1. All available records of [an identified investigation]… In this investigation I was listed as a suspect in [two occurrences].
2. All available records of the investigation … into my [identified] complaint. … Please include results and all available information regarding the polygraph test conducted by [identified individual and location].
The Police responded to the clarified request by providing partial access to certain records responsive to item 1, and denying access to portions of them on the basis of the exemptions at sections 14 and 38(b) (invasion of privacy).
Concerning item 2, the Police identified that the requested records were denied on the basis that the Act does not apply to them by virtue of the exclusion at section 52(3). The response stated:
… a portion of your request dealt with records concerning [an identified file number], which is the file number assigned to the public compliant you lodged regarding the conduct of a police officer employed with the Toronto Police Service.
. . . [T]he records relate to an employment-related matter; that being the complaint process regulated under the Police Services Act; and therefore, the access provisions of the [Act] do not apply.
The appellant appealed the decision of the Police.
During the mediation stage of the appeal, the appellant narrowed his appeal to include only the records relating to the investigation into his complaint against a police officer (item 2). As a result, the only remaining issue in this appeal is whether or not section 52(3) applies to the records responsive to item 2.
A Notice of Inquiry was initially sent to the Police, setting out the facts and issues in the appeal, and seeking representations on whether section 52(3) applied to the records. The Police provided representations supporting their position that section 52(3)1 and 3 applied. The Notice of Inquiry was then sent to the appellant, along with a copy of the non-confidential portions of the Police’s representations. The appellant provided brief representations in response.
RECORDS:
At issue in this appeal are records contained in the Police Services Act (PSA) complaint investigation file, including police officers’ memo books, polygraph test tapes and a videotape of the polygraph.
DISCUSSION:
ARE THE RECORDS EXCLUDED FROM THE ACT DUE TO SECTION 52(3)1 OR 52(3)3?