Access to Information Orders
Decision Information
NATURE OF THE APPEAL: The Ministry of Public Safety and Security (now the Ministry of Community Safety and Correctional Services) (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for all documents in the custody or under the control of the Ontario Provincial Police regarding its investigation into the death of the requester’s husband. The Ministry identified approximately 25 banker’s boxes of responsive records, and denied access to all of them on the basis of the following exemptions in the Act : sections 14(1)(a), 14(1)(b) and 14(2)(a) - law enforcement section 21(1) - invasion of privacy sections 49(a) and (b) - discretion to deny access to requester’s personal information The requester (now the appellant) appealed the Ministry’s decision. Mediation was not successful, and the appeal was transferred to the adjudication stage. I began my inquiry by sending a Notice of Inquiry to the Ministry seeking representations on the sections 14(1)(a) and 14(1)(b) exemptions and the exercise of discretion. The Ministry responded with representations, the non-confidential portions of which were then shared with the appellant. The appellant also submitted representations. In her representations the appellant narrowed the scope of the request to include only those records which relate to her, and pointed out that the purpose of the request is to provide evidence to insurers that she is not implicated in her husband’s death. I then sent the appellant’s representations to the Ministry for reply. After reviewing the representations, the Ministry issued a revised decision letter to the appellant, disclosing a copy of the statements she provided to the OPP during the course of the investigation. The Ministry also provided representations reinforcing its position that the rest of the records qualify for exemption under sections 49(a) and sections 14(1)(a) and (b) of the Act . RECORDS: The records comprise 25 bankers’ boxes of documents compiled by the OPP in the context of its investigation into the death by homicide of the appellant’s husband and a related house fire. They are described by the Ministry as consisting of occurrence reports, search warrants, witness statements/interview reports, OPP officers’ case notes, Coroner’s records, photographs, videotapes and other related records. DISCUSSION: LAW ENFORCEMENT General principles The sections 14(1)(a) and (b) exemptions provide the Ministry with discretion to deny access to records in circumstances where disclosure could reasonably be expected to interfere with an ongoing law enforcement matter or investigation. The Ministry bears the onus of providing evidence to substantiate that first, a law enforcement matter or investigation is ongoing and second, that disclosing the records could reasonably be expected to interfere with the matter or investigation. In order to establish that disclosing records “could reasonably be expected to” result in the harms identified in these sections, the Ministry must provide “detailed and convincing” evidence to establish a “reasonable expectation of harm”. Evidence amounting to speculation of possible harm is not sufficient [ 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.)]. Sections 14(1)(a) and (b) Sections 14(1)(a) and (b) read as follows: A head may refuse to disclose a record where the disclosure could reasonably be expected to, (a) interfere with a law enforcement matter; (b) interfere with an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result; In order to meet the requirements of sections 14(1)(a) and (b), the Ministry must establish that the law enforcement matter or investigation in question is specific and ongoing. The exemptions do not apply where the matter or investigation is completed, or where the alleged interference is with a “potential” law enforcement matter or investigation [Orders PO-2085, MO-1578]. The term “law enforcement” is defined in section 2(1) as follows: “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) The parties are in agreement that the OPP in conducting its homicide investigation is engaged in policing activities, thereby falling within the scope of the definition of “law enforcement”. The Ministry makes the following submissions in support of its position that the records fall within the parameters of sections 14(1)(a) and/or (b): The Ministry submits that disclosure of the OPP records at issue may reasonably be expected to interfere with an ongoing law enforcement investigation. The Ministry submits that the responsive records are relevant to a matter that is currently under investigation by the OPP. The OPP investigation has been undertaken with a view to a future law enforcement proceeding. The Ministry submits that disclosure of the records at issue at this point in time would interfere with an active law enforcement investigation undertaken by the OPP with respect to the circumstances of the January 11, 2002 homicide and related house fire. The Ministry also relies on Order PO-2085, where Adjudicator Sherry Liang upheld the sections 14(1)(a) and (b) exemptions when dealing with records from the Office of the Fire Marshal (OFM) that were relevant with respect to an ongoing Toronto Police Service and OFM law enforcement investigation into the circumstances of a sudden death and related house fire. The Ministry also provided a confidential letter from the OPP official in charge of the investigation, which outlines the status of the investigation and confirms that it is active and ongoing. The appellant submits: As a general principle, it is submitted that the length of time over which an investigation has been conducted must be taken into account in determining whether a refusal to disclose records is justifiable under subsections 14(1)(a) and (b). It is submitted that, in general , the possibility that the disclosure of the requested records could reasonably interfere with the investigation of a law enforcement matter must be reduced by the passage of time. [appellant’s emphasis] The appellant’s husband died over two years ago, on January 11, 2002. It has now become public knowledge that the investigation of the appellant’s husband’s death is at a stand still. ... It is obvious that the trail is now cold and that the police have turned to the public for assistance. It is submitted that, because of the age of the investigation and the apparent lack of progress, the likelihood that disclosure of the requested information will interfere with the investigation of a law enforcement matter is much reduced, if it is present at all. The appellant’s representations also refer to other law enforcement exempt
Decision Content
NATURE OF THE APPEAL:
The Ministry of Public Safety and Security (now the Ministry of Community Safety and Correctional Services) (the Ministry) received a request under the Freedom of Information and Protection of Privacy Act (the Act) for all documents in the custody or under the control of the Ontario Provincial Police regarding its investigation into the death of the requester’s husband.
The Ministry identified approximately 25 banker’s boxes of responsive records, and denied access to all of them on the basis of the following exemptions in the Act: