Neither the Police nor the appellant have addressed the question of whether the occurrence report at issue in this appeal contains personal information within the meaning of section 2(1). 

Based on my review of the record, I find that it contains the personal information of the appellant, including his date of birth (section 2(1)(a)), medical and psychiatric history (section 2(1)(b)), as well as his name and other personal information relating to him (section 2(1)(h)). 

The record also contains the personal information of two other individuals, including their dates of birth (section 2(1)(a)) and their names, along with other personal information about them (section 2(1)(h)). 

INVASION OF PRIVACY

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 exceptions to this general right of access.

Under section 38(b) of the Act, where a record contains the personal information of both the requester and other individuals and the institution determines that the disclosure of the information would constitute an unjustified invasion of another individual's personal privacy, the institution has the discretion to deny the requester access to that information.

Section 38(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 38(b) gives the institution the discretion to deny access to the personal information of the requester.

In determining whether the exemption in section 38(b) applies, sections 14(2), (3) and (4) of the Act provide guidance in determining whether disclosure of personal information would result in an unjustified invasion of the personal privacy of the individual to whom the information relates.  Section 14(2) provides some criteria for the institution to consider in making this determination.  Section 14(3) lists the types of information whose disclosure is presumed to constitute an unjustified invasion of personal privacy.  Section 14(4) refers to certain types of information whose disclosure does not constitute an unjustified invasion of personal privacy.

The Divisional Court has stated that once a presumption against disclosure has been established, it cannot be rebutted by either one or a combination of the factors set out in 14(2) [John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767]. 

A section 14(3) presumption can be overcome if the personal information at issue falls under section 14(4) of the Act or if a finding is made under section 16 of the Act that a compelling public interest exists in the disclosure of the record in which the personal information is contained which clearly outweighs the purpose of the section 14 exemption.  [See Order PO-1764]

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

Appeal Number MA-030106-1

The Police submit that the presumptions in sections 14(3)(a), (b), (g) and (h) of the Act apply to the personal information contained in the videotape which is the record at issue.  In addition, they indicate that the considerations listed in section 14(2)(f) and (i) of the Act also apply to this personal information.

The appellant has not made any relevant representations on this issue.

In Order MO-1196, Assistant Commissioner Tom Mitchinson addressed a similar situation in which an appellant sought access to information which he himself had provided to the institution.  The Assistant Commissioner found that:

A number of previous orders have found that non-disclosure of personal information which was originally provided to an institution by an appellant would contradict one of the primary purposes of the Act, which is to allow individuals to have access to records containing their own personal information unless there is a compelling reason for non-disclosure (See Orders M-444, M-613, M‑847, M-1977 and P-1263, for example).  These orders all determined that applying the presumption to deny access to information which the appellant provided to the institution would, according to the rules of statutory interpretation, lead to an “absurd” result.  I find that the same reasoning applies to the personal information of the appellant in this case.

In my view, to apply the presumption in section 14(3)(b) to those portions of the record which contain information which is about or was provided by the appellant, or of which he is clearly aware, would lead to an absurd result.

I adopt the reasoning contained in this decision for the purposes of the present appeal.  The appellant is seeking access to a videotape containing a statement which he provided to the Police.  The videotape only contains statements that came directly from the appellant or information communicated to him by the Police.  I find specifically that all of the personal information in the videotape originated with the appellant himself.

In my view, the application of the presumptions in sections 14(3)(a), (b), (g) and (h) or the considerations in sections 14(2) to this record would lead to an absurd result.  As a result, I find that the disclosure of the videotape to the appellant would not constitute an unjustified invasion of personal privacy under section 14(1).  Accordingly, this exemption has no application to the record.

Appeal Number MA-030122-1

The Police indicate that they are relying, among others, on the presumption in section 14(3)(b) which reads:

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

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;

The Police have provided me with confidential representations in support of this position which were not shared with the appellant.  I am not able, therefore, to describe them in detail in this order.  The appellant’s representations do not address this issue.

I have reviewed the contents of the occurrence report which comprises the record in this appeal and agree that the personal information contained in it was compiled and is identifiable as part of an investigation into a possible violation of law.  As a result, the presumption in section 14(3)(b) applies to the personal information in this record.  The appellant has not claimed the application of the “public interest override” in section 16 and the exceptions in section 14(4) do not apply.  I find that the record at issue in this appeal is, accordingly, exempt from disclosure under section 38(b). 

The Police have provided me with submissions with respect to the manner in which they exercised their discretion not to disclose the entire record to the appellant.  Based on those representations and my review of the record, I am satisfied that the Police exercised their discretion in a proper manner.

LAW ENFORCEMENT

Appeal Number MA-030106-1

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

if section 6, 7, 8, 9, 10, 11, 12, 13 or 15 would apply to the disclosure of that personal information;

Sections 8(1)(a) and (c) and 8(2)(a) and (c) state:

(1)        A head may refuse to disclose a record where the disclosure could reasonably be expected to,

(a)        interfere with a law enforcement matter;

 (c)       reveal investigative techniques and procedures currently in use or likely to be used in law enforcement;

(2)        A head may refuse to disclose a record,

(a)        that is a report prepared in the course of law enforcement, inspections or investigations by an agency which has the function of enforcing and regulating compliance with a law;

(c)       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;

Generally, the law enforcement exemption must be approached in a sensitive manner, recognizing the difficulty of predicting future events in a law enforcement context [Ontario (Attorney General) v. Fineberg (1994), 19 O.R. (3d) 197 (Div. Ct.)].

Except in the case of section 8(1)(e), where section 8 uses the words “could reasonably be expected to”, the institution must provide “detailed and convincing” evidence to establish a “reasonable expectation of harm”.  Evidence amounting to speculation of possible harm is not sufficient [Order PO-2037, upheld on judicial review in Ontario (Attorney General) v. Goodis (May 21, 2003), Toronto Doc. 570/02 (Ont. Div. Ct.), Ontario (Workers’ Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464 (C.A.)].

Sections 8(1)(a) and (c)

For the law enforcement exemption in section 8(1)(a) to apply, the law enforcement matter in question must be a specific, ongoing matter.  The exemption in section 8(1)(a) does not apply where the matter is completed, or where the alleged interference is with “potential” law enforcement matters [Orders PO-2085, MO-1578].

In order to meet the “investigative technique or procedure” test under section 8(1)(c), the institution must show that disclosure of the technique or procedure to the public could reasonably be expected to hinder or compromise its effective utilization.  The exemption normally will not apply where the technique or procedure is generally known to the public [Orders P-170, P-1487].

The techniques or procedures must be “investigative”.  The exemption will not apply to “enforcement” techniques or procedures [Orders PO-2034, P-1340].

The Police have provided me with confidential representations in support of its position that the videotape sought by the appellant is exempt on this basis.  Again, I am unable to refer to these representations in any detail in this order.  The appellant’s representations do not specifically address the application of these exemptions to the record.

Based on the submissions of the Police and my review of the videotape, I am satisfied that its disclosure to the appellant could not reasonably be expected to interfere with a law enforcement matter, nor would its disclosure reveal investigative techniques within the meaning of sections 8(1)(a) or (c).  In my view, the Police have not provided the kind of detailed and convincing evidence necessary to establish a “reasonable expectation of harm” under these exemptions. 

Section 8(2)(a) and (c)

The word “report” referred to in section 8(2)(a) means “a formal statement or account of the results of the collation and consideration of information”.  Generally, results would not include mere observations or recordings of fact [Orders P-200, MO-1238, MO-1337-I].

The purpose of section 8(2)(c) is to protect individuals who have provided information to a law enforcement agency during a law enforcement investigation, or who have authored a record in this context, the nature of which may expose them to civil liability.  This may include information of a speculative nature, innuendo and hearsay.  The exemption is not intended to protect a police officer’s routine recordings of observations and actions [Order MO-1192].

In my view, the videotape in question does not meet the requirements for a “report” at it does not represent a formal statement or account of the results of the collation and consideration of information.  Rather, the videotape contains the appellant’s own perception of events and does not include any analytical or interpretive component on the part of the Police, as is required under section 8(2)(a).

Similarly, the videotape does not record any of the types of information described above as “speculative”, “innuendo” or “hearsay”, other than the views of the appellant himself.  The tape contains only the comments and observations of the officers conducting the interview, along with those of the appellant.  As a result, I find that the exemption in section 8(2)(c) does not apply to the videotape.

Accordingly, I conclude that sections 8(1)(a) and (c) and 8(2)(a) and (c), and therefore section 38(a), have no application to the videotape which is the record at issue in Appeal MA-030106-1.

REASONABLE SEARCH

Appeal Number MA-030135-1

Where a requester claims that additional records exist beyond those identified by the institution, the issue to be decided is whether the institution has conducted a reasonable search for records as required by section 17 [Orders P-85, P-221, PO-1954-I].  If I am satisfied that the search carried out was reasonable in the circumstances, I will uphold the institution’s decision.  If I am not satisfied, I may order further searches.

The Act does not require the institution to prove with absolute certainty that records do not exist.  However, the institution must provide sufficient evidence to show that it has made a reasonable effort to identify and locate responsive records [P-624].

Although a requester will rarely be in a position to indicate precisely which records the institution has not identified, the requester still must provide a reasonable basis for concluding that such records exist.

In response to the Notice of Inquiry, the Police provided me with representations concerning the searches undertaken for records responsive to this request.  The Police indicate that “a thorough search of its records management system” was undertaken for any record pertaining to the visit on February 9, 2003 by two identified individuals to the office of the Police.  Searches were conducted using variations of the appellant’s name and his address as key words to define the search parameters.  The Police located a “consent to release” form executed by the two named individuals and disclosed it to the appellant, pursuant to another request from him under the Act.  No further records relating to this request were, however, located.

The Police indicate that they also undertook a manual search for responsive records in the locked file room which houses individual occurrence reports and information which is not part of a court brief.  Again, the Police did not locate any records containing information responsive to this request. 

A third search for responsive records was undertaken in the Sergeants’ office by the Freedom of Information Co-ordinator.  Again, no records were found relating to the events of February 9, 2003 involving the two named individuals.

The appellant did not provide me with any representations in response to the Notice of Inquiry in this appeal. 

Based on my review of the representations of the Police, I am satisfied that they made a reasonable effort to identify and locate records responsive to this request.  I will, accordingly, dismiss this appeal.

ORDER:

1.         I order the Police to disclose the videotape which forms the record in Appeal Number MA-030106-1 to the appellant by providing him with a copy by December 17, 2003 but not before December 10, 2003.

2.         I uphold the decision of the Police to deny access to the undisclosed portions of the occurrence report at issue in Appeal Number MA-030122-1.

3.         I dismiss Appeal Number MA-030135-1.

Original signed by:                                                                        November 12, 2003                     

Donald Hale