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 the following: any report with respect to a six-month pilot project authorized by the Solicitor General authorizing the Police to use the Taser; statistics with respect to the use of the Taser on emotionally disturbed persons; information gathered or produced regarding the use of the Emotionally Disturbed Person Form; and information relating to how apprehensions pursuant to the Mental Health Act are documented, in particular, how Mental Health Act apprehensions are included on CPIC [Canadian Police Information Centre] entries. The Police granted partial access to the records identified as responsive to the request, and denied access to records and portions of records based on the exemptions found in section 7(1) (advice and recommendations) and section 8(1)(c) (law enforcement) of the Act . The requester (now the appellant) appealed the Police's decision. Mediation did not resolve this appeal and it proceeded to the adjudication stage of the process. I sent a Notice of Inquiry to the Police, initially, and received representations in response. I then sent the Notice of Inquiry, together with the non-confidential portions of the Police's representations, to the appellant, who also provided representations. RECORDS: The records remaining at issue in this appeal consist of: A note at the top of page 5 of the records relating to CPIC entries. This information was denied pursuant to section 8(1)(c) of the Act ; Two reports identified as: an Emotionally Disturbed Person (EDP) Report Form Draft Report, including an Appendix (the EDP Draft Report), and a Police Taser Report with Appendices, including statistical information. Access to these two reports was denied pursuant to section 7(1) of the Act . DISCUSSION: LAW ENFORCEMENT Section 8(1)(c) The Police have claimed that section 8(1)(c) of the Act applies to the note at the top of page 5 of the records relating to CPIC entries. Section 8(1)(c) reads: A head may refuse to disclose a record if the disclosure could reasonably be expected to, reveal investigative techniques and procedures currently in use or likely to be used in law enforcement; In order for a record to qualify for exemption under this section, the matter to which the record relates must first satisfy the definition of the term "law enforcement" found in section 2(1) of the Act , which states: "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); Further, an institution relying on the section 8 exemption must establish that it is reasonable to expect that the harms set out in this section will ensue if the information in the records is disclosed. For the purpose of section 8(1)(c), the Police must provide "detailed and convincing" evidence to establish a "reasonable expectation of harm" (see PO-2034). 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.)]. 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.)]. However, it is not sufficient for the Police to take the position that the harms under section 8 are self-evident from the record or that a continuing law enforcement matter constitutes a per se fulfilment of the requirements of the exemption [Order PO-2040; Ontario (Attorney General) v. Fineberg ]. With respect to the section 8(1)(c) exemption, in order to meet the "investigative technique or procedure" test, the Police 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]. Furthermore, the techniques or procedures must be "investigative". The exemption will not apply to "enforcement" techniques or procedures [Orders PO-2034, P-1340]. Representations The Police take the position that the information at issue qualifies for exemption under section 8(1)(c). The Police state: In general, the CPIC system provides a general repository into which the various police jurisdictions within Canada enter electronic representations of information they collect and maintain. Therefore, a reasonable expectation of confidentiality exists between authorized users of CPIC that information therein will be collected, maintained and distributed in compliance with the spirit of fair information handling practices and there is an expectation that this information will be treated confidentially. There may be specific instances where the agency, which made the entry on the CPIC system, may seek to protect information found on CPIC such as protecting law enforcement activities from being jeopardized. The Police also provide confidential representations in which they identify the specific information contained in the severed portion of the record which they believe fits the exemption, and the reasons for that claim. In these confidential representations the Police identify that certain information contained in the severed portion of page 5 of the records, which they consider an investigative technique or procedure, is generally not known by the public, and that the disclosure of this information could hinder or compromise its effective utilization. Findings In order for a record to qualify for exemption under section 8(1)(c), the matter to which the record relates must first satisfy the definition of the term "law enforcement" found in section 2(1) of the Act . In this case, I am satisfied that the information at issue satisfies the definition of "law enforcement" within the meaning of the legislation. As set out above, the Police must also establish that it is reasonable to expect that the harms set out in section 8(1)(c) will ensue if the information is disclosed. In this case, the Police must show that disclosure of the technique or procedure to the public could reasonably be expected to hinder or compromise its effective utilization. It is not sufficient for the Police to take the position that these harms are self-evident from the record. In my view, the Police have not identified how or why the alleged harm could take place if the information at issue on page 5 were to be disclosed. The Police's representations simply identify the nature of the information at issue and assert that its release would hinder or compromise its effectiv
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 the following:
- any report with respect to a six-month pilot project authorized by the Solicitor General authorizing the Police to use the Taser;
- statistics with respect to the use of the Taser on emotionally disturbed persons;
- information gathered or produced regarding the use of the Emotionally Disturbed Person Form; and
- information relating to how apprehensions pursuant to the Mental Health Act are documented, in particular, how Mental Health Act apprehensions are included on CPIC [Canadian Police Information Centre] entries.