ORDER MO-1840

 

Appeal MA-030191-2

 

Toronto Police Services Board

NATURE OF THE APPEAL:

 

Under the Municipal Freedom of Information and Protection of Privacy Act (the Act), the appellant asked the Toronto Police Services Board (the Police) to make corrections to the personal information of herself and her son in an occurrence report she had obtained as the result of Order MO-1739, relating to alleged incidents in which the appellant’s son was the victim.

 

The Police issued a decision in which they clarified the first point in the appellant’s request for correction and refused to make any corrections to the record.  The Police also stated that a copy of the appellant’s request for correction had been attached to the record at issue to indicate the appellant’s disagreement.

 

The appellant appealed the Police’s decision.

 

During mediation, the Police indicated that they would make some of the corrections requested by the appellant, to the spelling of the appellant’s name and her date of birth, upon receipt of official documentation.  The appellant declined to provide that documentation until the conclusion of the appeal.

 

The matter was then transferred to the adjudication stage.  I sent a Notice of Inquiry to the appellant, inviting her to submit representations to substantiate her correction request.  The appellant provided representations in response to the notice.  In the circumstances of this appeal it was not necessary for me to seek representations from the Police.

 

RECORD:

 

The record the appellant wants corrected consists of one page entitled “General Occurrence” and three pages entitled “Supplementary Report”.

 

DISCUSSION:

 

SHOULD CORRECTIONS BE MADE TO THE RECORD?

 

General Principles

 

Section 36(1) of the Act gives individuals a general right of access to their own personal information held by an institution.  Section 36(2) permits individuals to seek correction of their own personal information:

 

Every individual who is given access under subsection (1) to personal information is entitled to,

 

(a)        request correction of the personal information if the individual believes there is an error or omission;

 

(b)        require that a statement of disagreement be attached to the information reflecting any correction that was requested but not made; and

 

(c)        require that any person or body to whom the personal information has been disclosed within the year before the time a correction is requested or a statement of disagreement is required be notified of the correction or statement of disagreement.

 

Sections 36(2)(a) and (b) provide two different remedies for individuals wishing to correct their own personal information.   Section 36(2)(a) entitles individuals to request that their personal information be corrected; institutions have the discretion to accept or reject a correction request.  Section 36(2)(b), on the other hand, entitles an individual to require an institution to attach a statement of disagreement to the information at issue when the institution has denied the individual’s correction request.  Thus, section 36(2)(a) is discretionary, whereas section 36(2)(b) is mandatory.

 

The following passage from Public Government for Private People:  The Report of the Commission on Freedom of Information and Individual Privacy/1980, vol. 3 (Toronto: Queen’s Printer, 1980) (the Williams Commission Report) is helpful in understanding the purpose and operation of the Act’s correction provisions:

 

The ability to correct information contained in a personal record will be of great importance to an individual who discovers that an agency is in default of its duty to maintain accurate, timely and complete records.  In this way, the individual will be able to exercise some control over the kinds of records that are maintained about him and over the veracity of information gathered from third-party sources.

 

Although the report refers to the individual’s “right” to correct a file, we do not feel that this right should be considered absolute.  Thus, although we recommend rights of appeal with respect to correction requests, agencies should not be under an absolute duty to undertake investigations with a view to correcting records in response to each and every correction request.  The privacy protection schemes which we have examined adopt what we feel to be appropriate mechanisms for permitting the individual to file a statement of disagreement in situations where the governmental institution does not wish to alter its record.  In particular cases, an elaborate inquiry to determine the truth of the point in dispute may incur an expense which the institution quite reasonably does not wish to bear.  Moreover, the precise criteria for determining whether a particular item of information is accurate or complete or relevant to the purpose for which it is kept may be a matter on which the institution and the individual data subject have reasonable differences of opinion.

 

If the request for correction is denied, the individual must be permitted to file a statement indicating the nature of his disagreement.  We recommend that an individual who has been denied a requested correction may exercise rights of appeal to an independent tribunal.  The tribunal, in turn, could order correction of the file or simply leave the individual to exercise his right to file a statement of disagreement.  (pp. 709-710)

 

One of the purposes of section 36(2) is to give individuals some measure of control over the accuracy of their personal information in the hands of government.  Both the Act and the Williams Commission Report support the view that the right to correction in section 36(2) is not absolute.

 

This office has previously established that in order for an institution to grant a request for correction, the following three requirements must be met:

 

1.         the information at issue must be personal and private information; and

 

2.         the information must be inexact, incomplete or ambiguous;  and

 

3.         the correction cannot be a substitution of opinion (Orders 186, P-382).

 

In each case, the appropriate method for correcting personal information should be determined by taking into account the nature of the record, the method indicated by the requester, if any, and the most practical and reasonable method in the circumstances (Order P-448).

 

Does the record contain the appellant’s personal information?

 

Under section 2(1) of the Act, personal information is defined, in part, to mean recorded information about an identifiable individual, including the individual’s address [section 2(1)(d)], or the individual’s name if it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual [section 2(1)(h)].

 

The appellant has not provided representations on whether the records contain personal information.  However, based on my review of the record, I find that it contains the personal information of the appellant and her son.

 

Is the record inexact, incomplete or ambiguous?

 

In her correction request, the appellant states:

 

I wish to receive from your office a clean police record and confirmation that the [reference to certain medical conditions] is erased from my file.  Also for my son I wish the labels [reference to sexual orientation and a personality trait] erased from his file.

 

In her representations in response to the Notice of Inquiry, the appellant again asks for correction of these items and related contents of the record.  She also states that the occurrence “should not have been cleared as unfounded.”  The remainder of her representations consist of unsubstantiated allegations and statements.  She also provides supporting documentation, and refers to the references she provided in connection with Appeal MA-030191-1, which I have reviewed.

 

Nothing in her representations or supporting material persuades me that the record is inexact, incomplete or ambiguous.

 

In Order M-777, I dealt with a correction request involving a “security file” which contained incident reports and other allegations concerning the appellant in that case.  The nature of the records is similar to those at issue here, in which the Police have recorded allegations and information reported to them.  I stated:

 

… the records have common features with witness statements in other situations, such as workplace harassment investigations and criminal investigations.  If I were to adopt the appellant’s view of section 36(2), the ability of government institutions to maintain whole classes of records of this kind, in which individuals record their impressions of events, would be compromised in a way which the legislature cannot possibly have intended.

 

In my view, records of this kind cannot be said to be “incorrect” or “in error” or “incomplete” if they simply reflect the views of the individuals whose impressions are being set out, whether or not these views are true.  Therefore, in my view, the truth or falsity of these views is not an issue in this inquiry.

 

…

 

… these same considerations apply to whether the records can be said to be “inexact” or “ambiguous”.  There has been no suggestion that the records do not reflect the views of the individuals whose impressions are set out in them.

 

Order MO-1518 dealt with investigation-related records in connection with a public complaint against two police officers.  Addressing the “public complaint report”, a record similar to the one at issue here, Adjudicator Dawn Maruno stated that she was “… satisfied that it is an accurate reflection of the investigating officer’s perception of the statements that were made at the time the report was created.”

 

I adopt this reasoning, and on this basis, I find that the record is not inexact, incomplete and ambiguous, and therefore does not meet the second requirement for correction referred to above.  It is therefore not strictly necessary for me to consider the third requirement.  I note, however, that the conclusion that the occurrence was “unfounded” is clearly a matter of opinion and altering that part of the record would entail a “substitution of opinion” which would also be precluded by the third requirement.

 

Although this is sufficient to dispose of the matter, I also note that, as regards the correction request regarding the appellant’s son’s information, section 36(2)(a) does not provide any right to request correction of the personal information of other individuals, and the appellant has provided no authority for making this request on her son’s behalf.

 

In addition, in my view, the most practical method for dealing with the appellant’s concerns is to attach a statement of disagreement to the record.  I note that the Police have already done this, treating the appellant’s correction request as the notice of disagreement.

 

As noted previously, the Police offered during mediation to correct the appellant’s name and date of birth upon receipt of official documentation.  The appellant declined to provide this.  In the absence of this documentation I am not in a position to order the correction of that information.  However if the appellant provides the necessary documentation to the Police, I expect they would correct those two items.

 

ORDER:

 

I uphold the decision of the Police.

 

 

 

 

 

Original Signed by:                                                                       September 30, 2004                                           

John Higgins