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;

The AGCO submits that Records 12 and 15 fall within the ambit of the term “law enforcement report”.  In order for a record to qualify for exemption under section 14(2)(a) of the Act, the AGCO must satisfy each part of the following three part test:

1.         the record must be a report; and

2.         the report must have been prepared in the course of law enforcement, inspections or investigations; and

3.         the report must have been prepared by an agency which has the function of enforcing and regulating compliance with a law.

[Order 200 and Order P-324]

Are Records 12 and 15 Reports?

The AGCO submits that:

Record 12 sets out formally the complaint that was made, the steps that were taken in order to investigate the complaint, it considers what actions might be appropriate and comes to a conclusion with respect to actions that should be taken in the particular case.  As a result, Record 12 is a report.

. . .

Record 15 is a report prepared by a Lottery Licensing/Compliance Officer employed by the City of Toronto. . . . Record 15 sets out formally the complaint made and the steps that were taken in order to investigate the complaint.  It recounts information that was gathered as part of the inspection carried out by the Lottery Licensing/Compliance Officer.  As a result, Record 15 is a report.

The word “report” 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].

In my view, both Records 12 and 15 represent a formal statement prepared by their authors following the collation and consideration of the information uncovered in the course of their investigations or inspections.  I find that while they include factual information, they also contain conclusions and analysis of the fact situation as discerned in the investigation and inspection process.  Accordingly, I find that both Records 12 and 15 may properly be considered to be “reports” for the purpose of section 14(2)(a).

Were Records 12 and 15 prepared in the course of law enforcement by an agency with the function of enforcing and regulating compliance with a law?

The AGCO also takes the position that Records 12 and 15 were prepared in the course of “law enforcement”.  With respect to Record 12, the AGCO submits that:

An OPP officer prepared record 12.  The OPP officer is a peace officer seconded to the AGCO and has all the duties and privileges assigned to him under the Police Services Act.  The investigation had the potential to result in charges under the Provincial Offences Act for a violation of the Gaming Control Act (the GCA) or administrative action under the GCA to revoke or refuse to renew a registration.  There was also potential for steps to be taken against the break open ticket licensee.  In a number of previous orders, the Information and Privacy Commissioner has recognized that the AGCO has the function of enforcing and regulating compliance with law as did its predecessors the Gaming Control Commission and the Liquor Licence Board of Ontario (see Orders PO-1889, P-1587 and P-1399).  As a result, it may be seen that record 12 was prepared during the course of law enforcement by an agency that has the function of enforcing and regulating compliance with a law.

With respect to Record 15, the AGCO submits that:

As a result of the investigation, the City of Toronto was in a position to recommend to the AGCO that charges be laid under the GCA.  Further, the City of Toronto, as the licensing authority that issued the licence to the charity selling break open tickets at [the store operated by the affected persons] had the option to suspend or revoke the licence if the licensee failed to oversee the manner in which the tickets were being sold.  Thus, record 15 was prepared during the course of law enforcement by a municipal licensing authority.

The Information and Privacy Commissioner has recognized that a municipal licensing authority has a role in enforcing a law.  In Order PO-1889, Adjudicator Donald Hale wrote:

Based on the submissions of the AGCO, I am satisfied that the records were prepared in the course of a law enforcement investigation and that the City of Brantford, in its capacity as the issuer of the lottery licences in question to the charities involved, was acting as an agency which has the function of enforcing and regulating a law, in this case the GCA.

. . . the AGCO submits that the municipal council of the City of Toronto has the function of regulating and enforcing compliance with law.

The AGCO also provided me with a lengthy description of its role in the regulation and enforcement of gaming legislation in Ontario, as well as a detailed explanation of the role that municipalities play in the regime.  This narrative was very helpful in assisting me in reaching the conclusion that the AGCO and the City of Toronto were performing a “law enforcement” function in conducting the investigations which gave rise to the creation of Records 12 and 15. 

Section 2(1) of the Act defines “law enforcement” in the following manner:

            “law enforcement” means,

                        (a)        policing,

                        (b)        investigations or inspections that lead or could lead to proceedings in a court or tribunal if a penalty or sanction could be imposed in those proceedings, and

                        (c)        the conduct of proceedings referred to in clause (b);

In my view, the AGCO and the City conducted investigations that could have resulted in a sanction being imposed on both the seller of the break open tickets, the affected persons, or the charity on whose behalf the tickets were sold.  I have no difficulty in finding that the reports which comprise Records 12 and 15 were prepared in the course of law enforcement and that both the AGCO (in the case of Record 12) and the City of Toronto (in the case of Record 15) are agencies with the function of enforcing and regulating compliance with a law, in this case the Gaming Control Act.  Because of these findings, I am of the view that Records 12 and 15 qualify for exemption under section 14(2)(a).

The appellant argues that the exception in section 14(4) applies to the reports which constitute Records 12 and 15.  This section states:

Despite clause (2)(a), a head shall disclose a record that is a report prepared in the course of routine inspections by an agency where that agency is authorized to enforce and regulate compliance with a particular statute of Ontario.

In my view, the exception in section 14(4) has no application to these records.  The  investigations that gave rise to the creation of Records 12 and 15 were begun as a result of a complaint received from the appellant.  Investigations of this sort are undertaken only in response to specific complaints received from the public or from some other source.  I find that these investigations cannot properly be described as “routine” and that the exception does not, accordingly, apply.

Exercise of discretion

In support of its decision to exercise its discretion not to grant the appellant access to Records 12 and 15, the AGCO indicates that:

. . . the head considered the fact that OPP officers seconded to the AGCO carry on a large number of investigations for a wide range of reasons.  Routine disclosure of these reports would reveal investigative techniques.  In most cases, disclosure of the reports would require such extensive severing to remove the personal information of third parties that the only thing a requester would be left with is information respecting how investigations are carried out.  Given that record 12 falls within the section 14(2)(a) exemption, it should not be disclosed to the appellant.

A head shall refuse to disclose personal information to any person other than the individual to whom the information relates except,

            if the disclosure does not constitute an unjustified invasion of personal privacy.

Sections 21(2) and (3) 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 21(2) provides some criteria for the institution to consider in making this determination.  Section 21(3) lists the types of information the disclosure of which is presumed to constitute an unjustified invasion of personal privacy.  Section 21(4) refers to certain types of information the disclosure of which 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 21(2) [John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767].

A section 21(3) presumption can be overcome if the personal information at issue falls under section 21(4) of the Act or if a finding is made under section 23 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 21 exemption.

[Orders PO-2017, 2033-I and PO-2056-I]

If none of the presumptions in section 21(3) applies, the institution must consider the application of the factors listed in section 21(2), as well as all other considerations that are relevant in the circumstances of the case.

The AGCO relies on the "presumed unjustified invasion of personal privacy" in section 21(3)(b) of the Act, which states:

A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy where 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 appellant claims that the factor listed under section 21(2)(d) applies in the circumstances of this appeal.  This section reads:

A head, in determining whether a disclosure of personal information constitutes an unjustified invasion of personal privacy, shall consider all the relevant circumstances, including whether,

the personal information is relevant to a fair determination of rights affecting the person who made the request;

The AGCO submits that the information contained in Record 21 was gathered in the course of its investigation into the allegations of wrongdoing made by the appellant.  I find that the information in Record 22 was compiled and is identifiable as part of the AGCO’s investigation into a possible violation of the GCA on the part of the affected persons.  As such, I find that Record 21 fits within the ambit of section 21(3)(b) and that its disclosure is presumed to constitute an unjustified invasion of the personal privacy of the affected persons.  As noted above, no factor or combination of factors under section 21(2) can rebut a presumption once it has been established.  The appellant has not raised the possible application of section 23 or any of the exceptions in section 21(4) and I find that none of them apply in the circumstances of this appeal.  I conclude, therefore, that Record 21 is exempt from disclosure under section 21(1).

Record 22 contains a summary of the findings and the recommendation of the Gaming Registration Officer to the Deputy Registrar with respect to the allegations against the affected persons.  Although the AGCO has not claimed the mandatory exemption in section 21(1) for this record, I find that it too was compiled and is identifiable as part of the AGCO’s investigation into a possible violation of the GCA by the affected persons.  As such, like Record 21, I find that the presumption in section 21(3)(b) applies to the personal information contained in Record 22.  Again, the factor referred to by the appellant under section 21(2) cannot rebut the operation of the presumption in section 21(3)(b).  Section 21(4) does not apply and the appellant has not raised the application of section 23.  I find, therefore, the Record 22 is exempt from disclosure under section 21(1).

ORDER:

I uphold the AGCO’s decision.

Original Signed By:                                                                       September 11, 2003                                           

Donald Hale