In their decision letter, the Police also indicated that they were denying access to certain portions of the police officers’ notebooks on the basis that they were not responsive to the request.

The requester (now the appellant) appealed the Police’s decision to deny access.

The appellant clarified that he was seeking a review of the Police’s exemption claims, but was not appealing the Police’s decision that portions of the records were non-responsive.

Mediation did not resolve this appeal, and the file was transferred to adjudication.  This office sent a Notice of Inquiry to the Police, initially, outlining the facts and issues and inviting the Police to make written representations.  The Police submitted representations in response.  This office then sent a Notice of Inquiry to the appellant, together with a copy of the non-confidential portions of the Police’s representations.  The appellant did not make any representations or otherwise respond to the Notice.

In this appeal I must decide whether the exemptions claimed by the Police apply to the records.

RECORDS:

The following records remain at issue, in whole or in part:

•         Record 1 - General Occurrence Report (pages 1–2)

•         Record 2 - CPIC printout (pages 3–4)

•         Record 3 - Letter dated March 29, 2000 (page 9)

•         Record 4 - Back of a cheque (page 13)

•         Record 5 - Occurrence Report (pages 18-19)

•         Record 6 - Police officer’s notes (pages 20-23)

•         Record 7 - Police officer’s notes (pages 24-32)

All page references correspond to the Police’s numbering system.

BRIEF CONCLUSION:

For the reasons set out in this order, I find that some of the information at issue is exempt from disclosure, while the remaining information is not and must be disclosed.

DISCUSSION:

PERSONAL INFORMATION

The first issue I must decide is whether the records contain personal information, and if so, whose.  This initial finding will determine whether I must review the Police’s denial of access to personal information in each record under section 38(b) (a discretionary exemption) or section 14 (a mandatory one).  It will also determine whether I review the Police’s “law enforcement” claim under section 8(1)(l) alone or in conjunction with section 38(a).

Under section 2(1) of the Act, personal information is defined, in part, to mean recorded information about an identifiable individual, including the individual’s name if 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 (section 2(1)(h)).

The Police submit:

The majority of exempted information in this file refers to a specific person; however, the records also contain the names, addresses and personal information of other identified individuals, detailing each person’s involvement in a law enforcement matter.

I have reviewed the records and I make the following findings:

•         Records 1, 3 and 5 contain the personal information of the appellant, the affected person and another individual.  The information relating to this latter individual consists of his name and job title, which ordinarily would constitute professional, rather than personal, information.  Because of the sensitive nature of the records and their context, however, I find that this information qualifies as personal information.  Record 3 is a typed letter that also contains a handwritten note.  The Police do not provide any representations for Record 3 or identify who wrote the note.  On its face, the note does not appear to contain personal information, and I find that it does not contain any.

•         Records 2, 6 and 7 contain the personal information of the affected person and other individuals.

•         Record 4 does not contain any personal information.

LAW ENFORCEMENT

The Police claim that an “ORI number” in Record 2 (page 4) is exempt under section 38(a) in conjunction with section 8(1)(l).  Because I have found that Record 2 does not contain the appellant’s personal information, however, I must review the Police’s decision to deny access to the ORI number under section 8(1)(l) alone, rather than in conjunction with section 38(a).

Section 8(1)(l) reads:

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

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

Because section 8(1)(l) is a discretionary exemption, even if the information falls within the scope of this section, the institution must nevertheless consider whether to disclose the information to the requester.

“ORI numbers” are also known as “CPIC access codes.”  The Police submit that the ORI number “refers to the query format used to access the information stored in the Canadian Police Information Centre (CPIC) system.”  According to the CPIC Reference Manual, each terminal for accessing the CPIC system is identified by a unique ORI number.  The Police further submit that:

Should an individual obtain access to [the CPIC] database, the quality and effectiveness of this police support system could be detrimentally affected.  Police agencies routinely act upon the information received from CPIC; and should the database be compromised by the altering of information contained therein, the ability of the police to function and perform their duties would be severely affected.

Previous orders of this office have found ORI numbers to qualify for exemption under section 8(1)(l) (for example, Orders M-933, MO-1335, MO-1428).  In Order MO-1335, Senior Adjudicator David Goodis stated that “Where information could be used by any individual to gain unauthorized access to the CPIC database, an important law enforcement tool, it should be considered exempt under section 8(1)(l).”  In keeping with these previous orders, I find that the ORI number in Record 2 (page 4) qualifies for exemption under section 8(1)(l) because its disclosure could reasonably be expected to facilitate the commission of an unlawful act.

I am also satisfied, based on the Police’s representations, that the Police have properly exercised their discretion in denying access to this information.

INVASION OF PRIVACY

The Police rely on section 38(b) of the Act in conjunction with section 14 to support their denial of access to Records 1, 2, 3, 5, 6 and 7.  More specifically, the Police rely on the “presumed unjustified invasion of personal privacy” at section 14(3)(b).  These sections read:

38.       A head may refuse to disclose to the individual to whom the information relates personal information,

(b)        if the disclosure would constitute an unjustified invasion of another individual’s personal privacy;

14  (3)  A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy if the personal information,

(b)        was compiled and is identifiable as part of an investigation into a possible violation of law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation;

Because I have found that Records 1, 3 and 5 contain personal information of the appellant and other individuals, I must determine whether these records qualify for exemption under section 38(b) of the Act.

By the same token, since I have found that Records 2, 6 and 7 contain the personal information of the affected person and other individuals, but not of the appellant, I must review whether these records are exempt under section 14.

Discretionary exemption at section 38(b)

Section 36(1) of the Act gives individuals a general right of access to their own personal information held by an institution.  Section 38 provides a number of exemptions from disclosure that limit this general right.

Under section 38(b), where a record relates to the requester but disclosure of the information would constitute an unjustified invasion of another individual’s personal privacy, the institution may refuse to disclose that information to the requester.

Sections 14(1) through (4) of the Act provide guidance in determining whether disclosure would result in an unjustified invasion of an individual’s personal privacy under section 38(b).  Sections 14(1)(a) through (e) provide exceptions to the personal privacy exemption; if any of these exceptions apply, the information cannot be exempt from disclosure under section 38(b).

Section 14(2) provides some criteria for determining whether the personal privacy exemption applies.  Section 14(3) lists the types of information whose disclosure is presumed to constitute an unjustified invasion of personal privacy.  Section 14(4) lists the types of information whose disclosure does not constitute an unjustified invasion of personal privacy.

The Divisional Court has ruled that once a presumption against disclosure has been established under section 14(3), it cannot be rebutted by either one or a combination of the factors set out in section 14(2).  A section 14(3) presumption can be overcome, however, if the personal information at issue is caught by section 14(4) or if the “compelling public interest” override at section 16 applies [John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767].

If none of the presumptions in section 14(3) applies, the institution must consider the factors listed in section 14(2), as well as all other relevant circumstances.

I would note at the outset that based on my review of the records, I have concluded that none of the exceptions at sections 14(1)(a) through (e) applies in this case.

Record 1 consists of a page entitled “General Occurrence” and another entitled “Supplementary Report.”   Record 5 is a two-page document entitled “Occurrence.”  The Police submit that they created the occurrence reports in this case for the purpose of investigating a complaint of criminal activity.  The Police have already disclosed most of Records 1 and 5 to the appellant and have withheld only small portions of these records relating to individuals other than the appellant.

The purpose of section 38(b) is to protect the personal privacy of individuals other than the requester (here, the appellant).  In Records 1 and 5, the Police have denied the appellant access to the personal information of the affected person and another individual, including their name and other descriptive information.  It is apparent from the records and the surrounding circumstances that the appellant himself provided much of this information to the Police when he made his complaint.  Consequently, in these circumstances, the affected person and the other individual have no privacy interest in this information vis-à-vis the appellant that needs protecting.

I do, however, agree with the Police’s decision to withhold information in Records 1 and 5 that the appellant clearly did not provide.  My finding that the appellant is not already privy to these specific portions of the records turns on the dates of the entries and their content.  I find that this information was compiled and is identifiable as part of an investigation into a possible violation of law, thereby triggering the presumption of an unjustified invasion of the affected person’s privacy at section 14(3)(b).  The presumption is not rebutted by section 14(4) or the “public interest override” at section 16, which was not raised in this case.  This information is therefore exempt under section 38(b).  In addition, I am satisfied that the Police did not err in exercising their discretion to withhold this information.

I am enclosing with the copy of this order being sent to the Police a copy of Records 1 and 5 highlighting those portions that the Police must not disclose.  I will order the Police to disclose the remaining information in Records 1 and 5, and Record 3 in its entirety.

Mandatory exemption at section 14

Unlike section 38(b), section 14 is a mandatory exemption.  If the personal information qualifies for exemption based on the section 14 analysis described above, the institution must refuse to disclose it.

Record 2 (pages 3 and 4) consists of two pages of CPIC printouts.  I have already found that the ORI number on page 4 is exempt under section 8(1)(l), and I will now address the remaining information.

Record 6 (pages 20-23) and Record 7 (pages 24-32) are entries from two police officers’ notebooks, and the responsive portions remain at issue.

Among other things, the Police submit that the notebook entries were created “for the purpose of investigating a complaint of criminal activity made to the Police.”  The Police also make certain confidential representations for Records 2, 6 and 7 that I am not at liberty to disclose in this order.

I am satisfied that Records 2, 6 and 7 were compiled and are identifiable as part of an investigation into a possible violation of law, and that their disclosure is thus presumed to constitute an unjustified invasion of personal privacy under section 14(3)(b).  Again, the presumption is not rebutted by section 14(4) or the “public interest override” at section 16.  The information at issue in Records 2, 6 and 7 is therefore exempt under section 14 and it must not be disclosed.

ECONOMIC AND OTHER INTERESTS

A head may refuse to disclose a record that contains,

information whose disclosure could reasonably be expected to be injurious to the financial interests of an institution;

The Police submit:

Information concerning bank account numbers is now, and has always been, carefully protected by financial institutions.  However, given the current, somewhat fallible, status of computerized banking, there is an even greater imperative to safeguard such information.

.  .  .  .  .

It is reasonably foreseeable that someone having access to such information could cause financial injury to another person.

The purpose of section 11 is to protect certain economic interests of institutions under the Act.  For section 11(d) to apply, the Police must demonstrate a reasonable expectation of injury to their own financial interests.  The Police’s representations, however, demonstrate that they are seeking to prevent financial injury to “another person.”  I find that the information at issue does not qualify for exemption under section 11(d).

THIRD PARTY INFORMATION

A head shall refuse to disclose a record that reveals a trade secret or scientific, technical, commercial, financial or labour relations information, supplied in confidence implicitly or explicitly, if the disclosure could reasonably be expected to,

result in undue loss or gain to any person, group, committee or financial institution or agency; …

ORDER:

1.         I order the Police to disclose Records 1 (pages 1-2) and 5 (pages 18-19), except for those portions that I found to be exempt under section 38(b), and Record 3 (page 9) in its entirety, by September 22, 2003.  I am attaching highlighted versions of Records 1 and 5 with the copy of this order being sent to the Police, identifying the portions that they must not disclose.

2.         I uphold the Police’s decision to deny access to the information at issue in Records 2 (pages 3-4), 4 (page 13), 6 (pages 20-23) and 7 (pages 24-32).

3.         In order to verify compliance with the terms of Provision 1, I reserve the right to require the Police to provide me with a copy of the records that are disclosed to the appellant, upon request.

Original Signed By:                                                                       August 29, 2003                                     

Shirley Senoff