Photographs A1-A11 depict individual members of the OPP, or clothing that is identifiable as an OPP uniform.  The appellant submits any such depictions of police officers in their employment, professional or official capacity does not constitute personal information under the Act.  The Ministry also takes the position that the information of the police officers in the Category 2 photographs is not their personal information.  The appellant is accurate when she points out that previous orders have established that information associated with individuals in their professional or official government capacity is not "about an individual” within the meaning of section 2(1) (see, for example, Orders P-1412, P-1621 and R-980015).  I find that the reasoning in these orders applies to photographs A1-A11 depicting OPP officers or clothing identifiable to the OPP officers, and that these records do not contain “personal information”, and should be disclosed. 

As far as the undisclosed videotapes in Category 2 are concerned, I find that they contain some of the same types of information as the photographs, for the same reasons.  Specifically, I find that some portions of the videotapes depict the activities of various occupiers at Ipperwash during the time period covered by the appellant’s request, and that these portions contain the “personal information” of these individuals; other portions contain identifying objects sufficient to link them to the occupiers, thereby bringing these portions within the scope of the definition of “personal information”; other portions of one videotape depict OPP officers and a health care professional discharging their professional responsibilities, which do not contain their personal information; and other portions that record activities at Ipperwash contain no “personal information”.

Category 3 videotape

The only Category 3 record is a videotaped interview of an individual conducted by the OPP.  It is apparent from the contents of this videotape that it was conducted in the context of the OPP’s investigation into the events that took place at Ipperwash.  The interviewee is identified by name and address on the tape, and her face and voice are clearly discernable.  Throughout the interview, the individual describes events that took place at Ipperwash, including her "personal opinions or views" as the phrase is used in paragraph (e) of the definition of “personal information”.  Accordingly, I find that the one Category 3 videotape contains the interviewee's “personal information.”  The OPP officers and health care professional who appear on the videotape are discharging their professional responsibilities, and the videotape does not include their personal information.  No individual, other than the interviewee, is identifiable from the contents of the videotape.

The Ministry asked me to reconsider my findings for Category 2 photographs A1-A11 on the basis that these records contained “personal information” of identifiable OPP officers who had not been notified.  I dealt with this issue in Reconsideration Order PO-2063-R as follows:

During the course of the inquiry leading to Interim Order PO-2033-I, the Ministry did not identify any personal information considerations relating to OPP officers contained in the various Category 2 records at issue in this appeal.  On the contrary, as the appellant points out, the Ministry specifically stated in its representations that information about police officers was not their personal information. Although the Ministry’s representations on this issue are not detailed, in making my “personal information” findings for Category 2 records in Interim Order PO-2033-I, I had assumed from the Ministry’s position that any required consultations with the various OPP officers depicted in the Category 2 photographs and videotapes had taken place.

As it turns out, the Ministry apparently had not consulted with these police officers prior to the issuance of Interim Order PO-2033-I.  After the order was issued, the Ministry contacted these police officers and, as stated in the Ministry’s reconsideration request, the officers objected to disclosure of information that would depict the injuries they sustained during altercations that took place at Ipperwash, on the basis that this was their “personal information” and that disclosure would represent an unjustified invasion of their privacy under section 21 of the Act.

Section 21 is a mandatory exemption.  If a record contains “personal information” as defined in section 2(1), an institution must deny access to this information under section 21, unless one of the exceptions to the mandatory exemption in section 21(1) are present.  The fact that the Ministry did not raise the possible application of section 21 to records depicting injuries suffered by the various police officers is unfortunate but, in my view, not determinative of whether there has been a fundamental defect in the adjudication process as it relates to photographs A1-A11.  I have an independent responsibility to properly consider the potential application of section 21 of the Act in all circumstances where this mandatory exemption could reasonably apply. 

In my view, the circumstances of this case are similar, though not identical, to those that Adjudicator Hale faced in Reconsideration Order R-980023.  In that case, Adjudicator Hale found that the failure to notify potential affected persons and to provide them with an opportunity to submit representations constituted a fundamental defect in the adjudication process.  I have also determined that there was a fundamental defect in the adjudication process in this case, but for somewhat different reasons.  As far as Category 2 photographs A1-A11 in this appeal are concerned, I find that my failure to independently consider whether these records contained “personal information”, based on the long-standing personal/professional distinction established by this office in previous orders, and if so, how any such “personal information” should be treated under sections 21 and 23 of the Act, constitutes a fundamental defect in the adjudication process under paragraph (a) of the reconsideration policy.

Applying this approach here, I carefully considered whether the audio portion of FOI Videotape 6 contains “personal information” of the OPP officers, based on the long-standing personal/professional distinction established by this office, and find that some portions do contain “personal information”.  I will consider these portions under the mandatory section 21 exemption claimed by the Ministry.  The rest of the audiotape does not contain “personal information” of any identifiable individual, and clearly not the OPP officers.  In my view, the portions of the audio tape that do not contain the OPP officers’ “personal information” is comparable to other records, including the audio tape disclosed by the Ministry in Interim Order PO-2056-I, which depicts OPP officers discharging professional responsibilities.  The Ministry did not suggest that the OPP officers in Interim Order PO-2056-I needed to be notified, presumably because the Ministry accepted that no “personal information” of the officers was at issue.  In my view, the same considerations apply to the audio tape at issue in this appeal.  Once the “personal information” has been isolated, the portions that remain do not contain “personal information” and, for the same reasons set out above under my discussion of the media representatives, the notification requirement of section 50(3) of the Act do not apply.

In summary, I find that the following information qualifies as “personal information”:

-                      photographs and videotapes depicting occupiers in Ipperwash

-                      the identified portions of FOI Videotape 6 that contain the personal information of the two OPP officers and others, but not any occupiers

And the following information does not qualify as “personal information”:

-                      photographs and videotapes depicting unidentifiable individuals

-                      photographs and videotapes depicting media representatives

-                      the remaining portions of FOI videotape 6 that do not contain “personal information”

The only exemption claimed by the Ministry in this appeal is section 21.  Therefore, any records that do not contain “personal information” cannot qualify for exemption and should be disclosed.

Before proceeding with my discussion of section 21, I should note that significant portions of various videotape records that remain at issue in this appeal contain personal information of occupiers who have consented to disclosure.  Maintenance Tape 2 has been severed in an effort to disclose as much of the record as possible without disclosing the one portion where consent has not been obtained, but the other Category 4 videotapes have been withheld in their entirety despite the fact that significant portions of these records contain personal information of occupiers who have provided consents.  In light of my findings under section 23 in this order, it is not necessary for me to identify the portions that should have already been disclosed on the basis of consent, but it is clear that other Maintenance Tapes and Gatehouse Tape 4 should also have been severed in the same manner as Maintenance Tape 2.

INVASION OF PRIVACY

The Ministry claims that disclosing personal information contained in the various records, without consent, would constitute an unjustified invasion of privacy.

Sections 21(2) and (3) of the Act provide guidance in determining whether disclosing personal information would result in an unjustified invasion of the privacy.  Section 21(3) lists the types of information the disclosure of which is presumed to constitute an unjustified invasion of privacy; and section 21(2) provides some criteria for the institution to consider in making the determination as to whether disclosure would represent an unjustified invasion of privacy.  The Divisional Court has stated that once a presumption against disclosure under section 21(3) has been established, it cannot be rebutted by either one or a combination of the factors set out in section 21(2) (John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767). 

In the earlier stages of this matter, records were divided into Categories 2 and 4, on the basis that Category 4 records were obtained under Criminal Code  warrants and Category 2 records were not.  Once the Ministry acknowledged that no warrants exist, Category 4 and Category 2 records became indistinguishable for the purposes of applying the provisions of section 21.  The Ministry’s actions in disclosing both Category 4 and new Category 2 records on the basis of consent confirms the absence of any distinction.

In Interim Order PO-2033-I, I made the following findings regarding Category 2 photographs and videotapes:

Having reviewed the Category 2 records and considered the representations provided by the parties, I am satisfied that the Category 2 videotapes and photographs recorded or produced by the OPP were all compiled and are all identifiable as part of an investigation into a possible violation of law.  Specifically, they form part of an investigation of events surrounding the occupation of Ipperwash in September 1995 and possible criminal activity taking place in that context.  Accordingly, I find that disclosure of the personal information of the occupiers contained in these Category 2 records would result in a presumed unjustified invasion of their personal privacy pursuant to section 21(3)(b) of the Act.  None of the exceptions at section 21(4) apply, and I find that the exception provided by section 21(1)(f) has no application in the circumstances of this appeal.  Therefore, subject to my discussion of section 23, I have concluded that the personal information of the occupiers qualifies for exemption under section 21 of the Act.

I see no basis for a different finding here.  The records that remain at issue were compiled by the OPP in the same context as the records at issue in Interim Order PO-2033-I.  The appellant’s representations in this appeal do not persuade me otherwise, and for the same reasons as the previous related order, I find that disclosing the personal information of the occupiers contained in the records at issue in this appeal would result in a presumed unjustified invasion of the personal privacy pursuant to section 21(3)(b) of the Act.  Accordingly, the exception in section 21(1)(f) has no application with respect to this information and, subject to my discussion of section 23, I have concluded that the personal information of the occupiers qualifies for exemption under section 21 of the Act.

As far as the personal information of the OPP officers is concerned, the appellant’s representations focus on her position that the relevant information is professional rather than personal, and not on whether disclosure of any “personal information” of these officers would constitute an unjustified invasion of privacy.  I have already determined that significant portions of FOI Videotape 6 do not contain “personal information” and should be disclosed.  The only portions qualifying as “personal information” consist of conversations between the officers about their colleagues and family members that have no connection to the activities taking place at the time in Ipperwash.  In the absence of any argument or evidence as to why “personal information” of this nature should be disclosed, I find that to do so would constitute an unjustified invasion of the privacy of the officers and other identifiable individuals, and these portions of FOI Videotape 6 qualify for exemption under section 21 of the Act.

PUBLIC INTEREST OVERRIDE

The appellant submits that the "public interest override" in section 23 of the Act applies in this case.  Section 23 reads as follows:

An exemption from disclosure of a record under sections 13, 15, 17, 18, 20, 21 and 21.1 does not apply where a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption.

The only submissions provided by the Ministry on section 23 consist of the following statement:

The Ministry submits that there is no compelling interest in disclosing the records that clearly outweighs the purpose of the section 21(1) exemption, particularly where individuals have not consented to the disclosure of their personal information.

The appellant disagrees, and submits:

Frankly, the appellant is shocked that the Ministry is taking the position that there is no compelling public interest in disclosure of information about Ipperwash that can override privacy interests.  The Government of Ontario has called a public inquiry into the events at Ipperwash, an inquiry which will inevitably lead to disclosure of a considerable amount of personal information about [a named occupier] and the other occupiers of Ipperwash Provincial Park.  In doing so, the Government promised that “Ontarians will receive a full airing of the facts by an independent commissioner into what happened eight years ago at Ipperwash” ….  The Government has clearly recognized by calling a public inquiry that the extreme public interest in the events surrounding the death of [the named occupier] supersedes privacy interests.

…

The Ministry had made nothing but a bald, unsupported statement that the public interest in Ipperwash is not sufficiently compelling to justify disclosure in this case.  It has not responded at all to the detailed submissions made by the appellant …  The appellant submits that the Ministry’s position is inconsistent with the earlier decisions of the Assistant Commissioner in this appeal, in Orders PO‑2033-I and PO-2056-I, and is completely untenable.

In order for section 23 to apply, two requirements must be met.  First, there must be a compelling public interest in disclosure; and second, this interest must clearly outweigh the purpose of the exemption (see Order P-1398, upheld on judicial review in Ontario (Ministry of Finance) v. Ontario (Information and Privacy Commissioner) (1999), 118 O.A.C. 108 (C.A.), leave to appeal refused (January 20, 2000), Doc. 27191 (S.C.C.)).

As the appellant points out, I considered section 23 of the Act in relation to the Category 2 records at issue in Interim Order PO-2033-I.  After taking into account the representations of both parties that are outlined in detail in that order, I made the following findings on the two components of section 23:

In my view, there is a clear and compelling public interest in disclosure of records that deal with events that took place at Ipperwash in September 1995.  Records such as those qualifying for exemption under section 21 in this appeal, which were created during the course of the occupation itself, and were the subject of criminal investigations undertaken by the OPP, are closely and directly connected to the activities that gave rise to the public’s interest and, in my view, this lends support to my finding that there is a “compelling” public interest in disclosure of these records for the purposes of section 23 of the Act.

            …

In weighing the compelling public interest in disclosure of the various Category 2 records against the purpose of the personal privacy exemption, I find that the public interest in disclosure outweighs the interests in privacy protection reflected in the section 21 exemption for most of the records, with certain exceptions.

[A discussion of the exceptions, which is not relevant in the context of this order.]

A number of other occupiers are depicted in the remaining photographs.  In a few instances these occupiers are identified by name, but in most cases they are not.  Some photographs include one individual only, while groups of occupiers are depicted in others.  … In my view, the personal information of the various other occupiers in the undisclosed Category 2 photographs is not sensitive.  While I accept that these photographs … are technically part of an OPP criminal investigation, the content of the photographs is apparently not the primary focus of any investigation itself and does not appear to depict criminal activity.  The photographs depict passive scenes of occupiers in Ipperwash (or in some instances objects that are identifiable to occupiers), and as noted above, at the very least, a significant number of occupiers consented to having their personal information disclosed to the appellant.  On balance, and taking into account all of the relevant considerations favouring both privacy protection and disclosure, I find that the compelling public interest in disclosure of [a number of listed photographs] is sufficient to outweigh the purpose of the section 21 exemption claim as it relates to these identifiable occupiers.

As far as the Category 2 videotapes are concerned, I have reached similar conclusions for the same reasons.  While I accept that these videotapes were created by the OPP in the context of criminal investigation activity, the content of the videotapes is apparently not the primary focus of any investigation itself and does not appear to depict criminal activity.  The portions of the videotapes that contain personal information consist primarily of passive scenes of occupiers in Ipperwash, and, as noted above, at the very least, a significant number of occupiers, including the individual who is the focus of the last described videotape, consented to having their information disclosed to the appellant.  On balance, and taking into account all of the relevant considerations favouring both privacy protection and disclosure, I find that the compelling public interest in disclosure of all four remaining videotapes, in their entirety, is sufficient to outweigh the purpose of the section 21 exemption claim as it relates to these identifiable occupiers.

I subsequently found that most of the audio portion of the one Category 3 record also fell within the scope of section 23 (Interim Order PO-2056-I).

My reconsideration of Interim Order PO-2033-I (Reconsideration Order PO-2063-R) did not alter my section 23 findings as they relate to the type of personal information of occupiers at issue in this inquiry.

Again, I see no basis for any different finding for the Category 4 and new Category 2 records at issue in this inquiry.  Since I issued Interim Order PO-2033-I, the appellant and others have made concerted efforts to identify and locate the various occupiers depicted in the records, and obtained many new consents.  Although consents for some occupiers are still outstanding, I accept that reasonable efforts to obtain consent have been made.  I have been provided with no evidence to suggest that any occupier denied consent once contacted and, given the actions of the vast majority of occupiers, it is reasonable to conclude that any occupier who could be contacted would not refuse consent. 

In my view, the compelling public interest in disclosure that existed at the time of my previous orders has not abated.  If anything, the Government’s decision to proceed with a public inquiry into the events taking place at Ipperwash during the time period covered by the appellant’s request would appear to add credence to my previous orders and support to my finding in this inquiry that there is a compelling public interest in disclosing the personal information of all occupiers contained in the various photographs and videotapes that is sufficient to outweigh the purpose of the section 21 privacy exemption.  Therefore, section 23 of the Act applies, and the personal information of the various occupiers should be disclosed.

As far as the personal information of the OPP officers is concerned, different considerations apply.  The appellant has provided no evidence or argument to suggest that there is a compelling public interest in disclosing personal information of these officers and their colleagues or family members that bear no connection to the activities taking place in Ipperwash.  I find that the portions of FOI Videotape 6 containing this information do not fall within the scope of section 23 and should not be disclosed.

OUTSTANDING ISSUES RELATING TO VIDEOTAPE RECORDS

After reviewing the various videotape records in this inquiry, I wrote to the Ministry asking for answers to the following three questions:

1.                  Several videotapes include long sections where the screen is black.  What is the explanation for this?

2.                  Several videotapes include sections where the video portion is interrupted by screens indicating that a phone line is being dialled and then connected.  What is the explanation for this?

3.                  On Maintenance Tape 9, there is a section of approximately 20 seconds (18:32:20 to 18:32:40) where the audio portion of the tape is not audible.  What is the explanation for this?

The Ministry answered question 1 as follows:

With respect to the sections where there is no picture and the screen is black, this is because there is a loss of light in the room that is being recorded.  This is most likely as a result of someone in the Maintenance Building turning the light switch off.  The fact that the date/time numbers at the bottom of the screen are still moving means that only the recorder is still functioning.  The fact that the numbers at the top right corner of the screen are also changing indicates that the phone line connection is present and a picture is being received.  In this instance, because the lights are turned off the picture is black.  The black squares on the screen are just a pixilation of the image that the camera is trying to see.  The camera is working hard to try and see any image it can in the low light.  …

The Ministry’s answer to question 2 is:

The video camera located in the buildings was connected to the recording device via telephone lines.  When this signal would have been interrupted or disconnected, a redialling system would have reconnected the phone line.

Both of these answers are reasonable explanations for the absence of video footage on various Category 4 videotape records.

As far as question 3 is concerned, the Ministry’s initial response was:

This is a technical problem and the OPP are attempting to get the audio enhanced.

In a follow-up letter, the Ministry states:

With respect to question three regarding the audibility of a section of the Maintenance Building Video 009, we are enclosing a floppy disk which contains the enhanced version of the portion of the video.  The OPP have advised that this is the best quality of the audio that they were able to produce.

I reviewed the “enhanced version” provided by the Ministry, but the 20-second portion is still inaudible.

I gave the Ministry an opportunity to provide any additional explanation in response to question 3, but have received no further correspondence from the Ministry on this issue.

In my view, the answer provided by the Ministry to question 3 does not adequately explain the absence of audio for 20 seconds in the middle of a taped telephone conversation.  Accordingly, I will include a provision in this interim order requiring the Ministry to provide me with an affidavit explaining this audio gap in detail.

In order to satisfy myself that any outstanding issues regarding the various videotapes were not a function of the quality of the copies of these records provided to me by the Ministry, I arranged to view the original videotape records.  In that context, I confirmed other issues:

-                      In addition to the audio gap identified in question 3, there are other instances where there is an apparent gap in the audio portion of the videotape, specifically:

Maintenance Tape 8 from 13:45:05 to 13:45:33

Maintenance Tape 8 from 13:54:06 to 13:54:23

Maintenance Tape 9 from 18:08:55 to 18:09:15

-                      Certain Maintenance Tapes contain both audio and video footage (Maintenance Tape 9, most of Maintenance Tape 8 and some of Maintenance Tape 10), while others have only video (Maintenance Tapes 1-7 and Gatehouse Tapes 1-6).  Even when the tapes contain audio, the audio footage is not constant (e.g., there is no audio on Maintenance Tape 8 from the beginning to 12:39:53, and on Maintenance Tape 10 from 2:05:43 to the end).

-                      Although the various videotapes were described as original copies, Maintenance Tape 9 begins with footage that is time-coded as 23:03:54 (the start time for Maintenance Tape 10), only to be interrupted and re-started at the correct time of 16:56:43.

-                      Maintenance Tape 7 ends with the time-code at 10:38:42 and Maintenance Tape 8 begins with the time-code at 10:46:33.  Footage for the time period 10:38:43 to 10:46:32 is not contained on either of these videotapes.

In my view, these issues need to be addressed by the Ministry in order to satisfy me that I have been provided with access to all of the various responsive records identified to this point by the Ministry.  Accordingly, I will include a provision in this interim order requiring the Ministry to provide me with affidavit evidence explaining these apparent discrepancies.

ADEQUACY OF SEARCH/COMPLIANCE WITH INTERIM ORDER PO-2033-I

Adequacy of Search

On September 10, 2003, I received an affidavit sworn by Superintendent Susan Dunn of the OPP outlining the various searches undertaken by the Ministry to identify all responsive records.  This affidavit was provided to the appellant.

In her appeal documentation, the appellant pointed to a number of perceived deficiencies in the search activities outlined by Superintendent Dunn, and identified a number of reasons for her view that responsive records not yet identified by the Ministry should exist.

In my Notice of Inquiry sent to the Ministry, I required Superintendent Dunn to swear another affidavit addressing all of the evidence regarding potential additional records raised by the appellant in her appeal documentation and in correspondence sent by the appellant to the Ministry between August 25, 2003 and the due date for representations in this inquiry. 

I also required affidavits from all OPP officers with personal knowledge of responsive photographic and videotape records of activities taking place at Ipperwash during the time period identified in the appellant’s request attesting to various steps taken to identify and locate responsive records.  I pointed to page 39 of the appellant’s appeal documentation for a list of potential officers. 

In addition to the various search efforts, I required the affidavits to address:

-                      whether the individual officer had reviewed relevant notes they may have taken;

-                      whether he/she had reviewed OPP logs that describe the taking of photographs or videotaping; and

-                      whether he/she had reviewed the photographs and videotapes themselves.

In this context, I asked the Ministry to provide each OPP officer with:

-                      a description of the records dealt with in the Ministry’s decision letters to date, including the date, length and content of the videotapes; and

-                      the evidence set out at pages 33 to 38 of the appellant’s appeal documentation and in the appellant’s letters of August 29, 2003 and September 19, 2003 (referred to at pages 32 and 40 of the appellant’s appeal documentation).

I pointed out that the officers’ affidavits should attest to whether, based on the information provided by the Ministry and any other knowledge they possess, they are aware of the existence of any additional responsive records and the possible location of any such records.

Compliance with Interim Order PO-2033-I

On September 16, 2003, I received an affidavit sworn by Superintendent Susan Dunn of the OPP outlining the steps taken by the Ministry to comply with Provisions 1 and 2 of Interim Order PO‑2033-1.  This affidavit was provided to the appellant.

In her appeal documentation, the appellant pointed to a number of perceived deficiencies in the various steps outlined by Superintendent Dunn, and identified reasons for her view that the provisions of Interim Order PO-2033-I have not yet been fully complied with.

In my Notice of Inquiry, sent to the Ministry on October 30, I required Superintendent Dunn to swear another affidavit addressing all of the evidence on this issue provided by the appellant in her appeal documentation and in correspondence sent by the appellant to the Ministry between August 25, 2003 and the due date for representations in this inquiry.

The Ministry’s response

On November 7, 2003, I received a letter from the Ministry asking for an extension of the due date for representations, including the various affidavits, to January 19, 2004.  I responded on November 10, agreeing to an extension of the date for receipt of the various affidavits to December 5, 2004.  On December 4 and December 5, 2003, I received two letters from the Ministry stating that affidavits would not be submitted by the extended due date, for reasons outlined in the December 5 letter.  That letter closes by stating:

While we remain anxious to expedite the Ministry’s response to your Notice of Inquiry, we are not at this time in the position to provide an accurate estimation of the date by which the affidavits will be completed.  We wish to assure you that we will make every effort to provide a response as expeditiously as possible.  We will keep you informed promptly of any developments.

As of the date of this interim order, the Ministry has not provided me with a date by which the affidavits will be submitted. 

It has now been almost 8 weeks since I issued my Notice of Inquiry in this appeal which, in my view, should be adequate for the Ministry and the OPP to obtain and submit the required affidavit evidence.  Accordingly, I will include a provision ordering the Ministry to do so.

INTERIM ORDER:

1.                  I uphold the Ministry’s decision not to disclose the portion of FOI Videotape 6 containing the personal information of the OPP officers and others.  This portion begins approximately 17 minutes and 30 seconds into the tape, with the phrase “I saw John [] …”, and ends at approximately 20 minutes and 43 seconds, the second time one officer says “talk to you later”.

2.                  I order the Ministry to disclose all remaining undisclosed Category 2 and Category 4 videotapes and photographs, including the entire Maintenance Tape 10, to the appellant by January 16, 2004.

3.                  I order the Ministry to provide me with an affidavit sworn by Superintendent Dunn attesting to the following:

-                      confirming that I have been provided with access to all original Category 2 and Category 4 videotape records

-                      explaining the following apparent gaps in the audio portion of various videotape records:

-           Maintenance Tape 8 from 13:45:05 to 13:45:33

-           Maintenance Tape 8 from 13:54:06 to 13:54:23

-           Maintenance Tape 9 from 18:08:55 to 18:09:15

-           Maintenance Tape 9 from 18:32:20 to 18:32:40

-                      explaining why some Maintenance Tapes contain both audio and video footage (Maintenance Tape 9, most of Maintenance Tape 8 and some of Maintenance Tape 10), while others have only video (Maintenance Tapes 1-7 and Gatehouse Tapes 1-6);  and further explaining why even when the tapes contain audio, the audio footage is not constant (e.g., there is no audio on Maintenance Tape 8 from the beginning to 12:39:53, and on Maintenance Tape 10 from 2:05:43 to the end).

-                      explaining why, although the various videotapes were described as original copies, Maintenance Tape 9 begins with footage that is time-coded as 23:03:54 (the start time for Maintenance Tape 10), only to be interrupted and re-started at the correct time of 16:56:43.

-                      explaining why Maintenance Tape 7 ends with the time-code at 10:38:42 and Maintenance Tape 8 begins with the time-code at 10:46:33, and why footage for the time period 10:38:43 to 10:46:32 is not contained on either of these videotapes.

This affidavit must be submitted to me not later than January 12, 2004.

4.                  I order the Ministry to provide me with an affidavit sworn by Superintendent Dunn on the outstanding issue of whether the Ministry has fully complied with the provisions of Interim Order PO-2033-I, taking into account the evidence on this issue provided by the appellant in her appeal documentation and in correspondence sent by the appellant to the Ministry between August 25, 2003 and the date of this interim order.  This affidavit must be submitted to me not later than January 12, 2004.

5.                  I order the Ministry to provide me with an affidavit sworn by Superintendent Dunn addressing all of the evidence regarding potential additional records raised by the appellant in her appeal documentation and in correspondence sent by the appellant to the Ministry between August 25, 2003 and the date of this interim order.  This affidavit must be submitted to me not later than January 23, 2004.

6.                  I order the Ministry to provide me with affidavits from all OPP officers with personal knowledge or responsive photographic and videotape records of activities taking place at Ipperwash during the time period identified in the appellant’s request (see page 39 of the appellant’s appeal documentation for a list of potential officers), attesting to various steps taken to identify and locate responsive records.  In addition to the various search efforts, the affidavits should address:

-                      whether the officers have reviewed relevant notes they may have taken;

-                      whether the officers have reviewed OPP logs that describe the taking of photographs and videotapes;  and

-                      whether the officers have reviewed the photographs and videotapes themselves.

In addition, the Ministry is asked to provide each OPP officer with:

-                      a description of the records dealt with in the Ministry’s decision letters to date, including the date, length and content of the videotapes;  and

-                      the evidence set out at pages 33 to 38 of the appellant’s appeal documentation and in the appellant’s letters of August 29, 2003 and September 19, 2003 (referred to at pages 32 and 40 of the appellant’s appeal documentation).

The officers’ affidavits should attest to whether, based on the information provided by the Ministry and any other knowledge they possess, they are aware of the existence of any additional responsive records and the possible location of any such records.

These affidavits must be submitted to me not later than January 23, 2004.

7.                  In order to verify compliance with Provision 2 of this interim order, I reserve the right to require the Ministry to provide me with a copy of the various records disclosed to the appellant, upon my request.

                                                                                                       December 23, 2003                                           

Tom Mitchinson