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 access to information relating to an incident in which the requester was involved. The Police located the requested information and granted the requester access to portions of the responsive records. They denied the requester access to the remaining information on the basis that it was exempt under section 38(b) of the Act (invasion of privacy) in conjunction with section 14(3)(b) (compiled as part of a law enforcement investigation). The Police also indicated that portions of the police officer memorandum books contained information that did not respond to the request as they were concerned only with matters unrelated to the requester. The requester, now the appellant, appealed the decision of the Police. During the mediation stage of the appeal, the Police disclosed some of the information contained in page 18 of the records at issue. No other issues were resolved and the matter was moved to the adjudication stage of the process. This office initially sought and received the representations of the Police, the non- confidential portions of which were shared with the appellant, along with a Notice of Inquiry. The appellant did not provide representations in response to the Notice that was sent to him. RECORDS: The records remaining at issue consist of the undisclosed portions of pages 1, 3, 4, 5, 7, 8, 9, 10, 11, 12, 15, 17, 18, 19 and 20, which are various notebook entries made by police officers relating to a particular incident involving the appellant. DISCUSSION: SCOPE OF THE REQUEST The Police take the position that the undisclosed portions of pages 1, 7, 8, 12, 15 and 20 relate to matters involving the investigating officers on the date in question that do not relate to the incident involving appellant in any way. As a result, the Police submit that these portions of the records are not responsive to the request. Previous orders of the Commissioner have established that in order to be responsive, a record must be “reasonably related” to the request: In my view, the need for an institution to determine which documents are relevant to a request is a fundamental first step in responding to a request. It is an integral part of any decision by a head. The request itself sets out the boundaries of relevancy and circumscribes the records which will ultimately be identified as being responsive to the request. I am of the view that, in the context of freedom of information legislation, “relevancy” must mean “responsiveness”. That is, by asking whether information is “relevant” to a request, one is really asking whether it is “responsive” to a request. While it is admittedly difficult to provide a precise definition of “relevancy” or “responsiveness”, I believe that the term describes anything that is reasonably related to the request [Order P-880; see also Order P-1051]. The appellant’s request was clear and specific, seeking access to a 911 telephone message and the notebook entries or other information retained by “the officers on the scene”. The Police located the requested records and disclosed the tape and those portions of the notebook entries that are not exempt from disclosure under section 38(b) to the appellant. I have reviewed those portions of the notebook entries that the Police claim to be not responsive and am satisfied that the information severed by the Police is, in fact, not responsive to this request and is accordingly not at issue in this appeal. I will now determine whether the remaining portions of the records are exempt from disclosure. PERSONAL INFORMATION In order to determine which sections of the Act may apply, it is necessary to decide whether the record contains “personal information” and, if so, to whom it relates. Under section 2(1), personal information is defined, in part, to mean recorded information about an identifiable individual, including the age, sex and marital status of an individual [paragraph (a)], the address or telephone number of the individual [paragraph (d)], the personal opinions or views of the individual [paragraph (e)], the views or opinions of another individual about the individual [paragraph (g)] or the individual's name where it appears with other personal information relating to the individual [paragraph (h)]. The Police submit that the records contain names, addresses, telephone numbers, dates of birth and personal comments of those individuals who provided statements to the investigating officers. I agree with this position and find that the undisclosed information in the records includes information that qualifies as the personal information of these individuals. Upon my review of the records, I am satisfied that they also contain the personal information of the appellant, as they include his name and describe his actions [paragraph (h)] and indicate his views and opinions [paragraph (e)] along with the views and opinions of other individuals about the appellant [paragraph (g)]. RIGHT OF ACCESS TO ONE’S OWN PERSONAL INFORMATION/PERSONAL PRIVACY OF ANOTHER INDIVIDUAL 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 38 provides a number of exemptions from this right. Under section 38(b), where a record contains personal information of both the requester and another individual, and disclosure of the information would constitute an “unjustified invasion” of the other individual’s personal privacy, the institution may refuse to disclose that information to the requester. If the information falls within the scope of section 38(b), that does not end the matter. Despite this finding, the institution may exercise its discretion to disclose the information to the requester. This involves a weighing of the requester’s right of access to his or her own personal information against the other individual’s right to protection of their privacy. Thus, I will first consider whether section 38(b) applies and then whether the Police properly exercised their discretion under this section. Sections 14(1) through (4) of the Act provide guidance in determining whether disclosure would result in an unjustified invasion of an individual's personal privacy under section 38(b). Section 14(2) provides some criteria for determining whether the personal privacy exemption applies. Section 14(4) lists the types of information whose disclosure does not constitute an unjustified invasion of personal privacy. Section 14(3) lists the types of information whose disclosure is presumed to constitute an unjustified invasion of personal privacy. The Divisional Court has ruled that once a presumption against disclosure has been established under section 14(3), it cannot be rebutted by either one or a combination of the factors set out in section 14(2). A section 14(3) presumption can be overcome, however, if the personal information at issue is caught by section 14(4) or if the "compelling public interest" override at section 16 applies ( John Doe v. Ontario (Information and Privacy Commissioner ) (1993), 13 O.R. (3d) 767). The Police rely on the operation of the presumption in section 14(3)(b), which reads: A disclosure of personal information is presumed to constitute an unjustified i
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 access to information relating to an incident in which the requester was involved.
The Police located the requested information and granted the requester access to portions of the responsive records. They denied the requester access to the remaining information on the basis that it was exempt under section 38(b) of the Act (invasion of privacy) in conjunction with section 14(3)(b) (compiled as part of a law enforcement investigation). The Police also indicated that portions of the police officer memorandum books contained information that did not respond to the request as they were concerned only with matters unrelated to the requester. The requester, now the appellant, appealed the decision of the Police.
During the mediation stage of the appeal, the Police disclosed some of the information contained in page 18 of the records at issue. No other issues were resolved and the matter was moved to the adjudication stage of the process. This office initially sought and received the representations of the Police, the non-confidential portions of which were shared with the appellant, along with a Notice of Inquiry. The appellant did not provide representations in response to the Notice that was sent to him.
RECORDS:
The records remaining at issue consist of the undisclosed portions of pages 1, 3, 4, 5, 7, 8, 9, 10, 11, 12, 15, 17, 18, 19 and 20, which are various notebook entries made by police officers relating to a particular incident involving the appellant.
DISCUSSION:
SCOPE OF THE REQUEST
The Police take the position that the undisclosed portions of pages 1, 7, 8, 12, 15 and 20 relate to matters involving the investigating officers on the date in question that do not relate to the incident involving appellant in any way. As a result, the Police submit that these portions of the records are not responsive to the request.
Previous orders of the Commissioner have established that in order to be responsive, a record must be “reasonably related” to the request:
In my view, the need for an institution to determine which documents are relevant to a request is a fundamental first step in responding to a request. It is an integral part of any decision by a head. The request itself sets out the boundaries of relevancy and circumscribes the records which will ultimately be identified as being responsive to the request. I am of the view that, in the context of freedom of information legislation, “relevancy” must mean “responsiveness”. That is, by asking whether information is “relevant” to a request, one is really asking whether it is “responsive” to a request. While it is admittedly difficult to provide a precise definition of “relevancy” or “responsiveness”, I believe that the term describes anything that is reasonably related to the request [Order P-880; see also Order P-1051].
The appellant’s request was clear and specific, seeking access to a 911 telephone message and the notebook entries or other information retained by “the officers on the scene”. The Police located the requested records and disclosed the tape and those portions of the notebook entries that are not exempt from disclosure under section 38(b) to the appellant. I have reviewed those portions of the notebook entries that the Police claim to be not responsive and am satisfied that the information severed by the Police is, in fact, not responsive to this request and is accordingly not at issue in this appeal. I will now determine whether the remaining portions of the records are exempt from disclosure.
PERSONAL INFORMATION
In order to determine which sections of the Act may apply, it is necessary to decide whether the record contains “personal information” and, if so, to whom it relates. Under section 2(1), personal information is defined, in part, to mean recorded information about an identifiable individual, including the age, sex and marital status of an individual [paragraph (a)], the address or telephone number of the individual [paragraph (d)], the personal opinions or views of the individual [paragraph (e)], the views or opinions of another individual about the individual [paragraph (g)] or the individual's name where it appears with other personal information relating to the individual [paragraph (h)].
The Police submit that the records contain names, addresses, telephone numbers, dates of birth and personal comments of those individuals who provided statements to the investigating officers. I agree with this position and find that the undisclosed information in the records includes information that qualifies as the personal information of these individuals. Upon my review of the records, I am satisfied that they also contain the personal information of the appellant, as they include his name and describe his actions [paragraph (h)] and indicate his views and opinions [paragraph (e)] along with the views and opinions of other individuals about the appellant [paragraph (g)].
RIGHT OF ACCESS TO ONE’S OWN PERSONAL INFORMATION/PERSONAL PRIVACY OF ANOTHER INDIVIDUAL
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 38 provides a number of exemptions from this right.
Under section 38(b), where a record contains personal information of both the requester and another individual, and disclosure of the information would constitute an “unjustified invasion” of the other individual’s personal privacy, the institution may refuse to disclose that information to the requester.
If the information falls within the scope of section 38(b), that does not end the matter. Despite this finding, the institution may exercise its discretion to disclose the information to the requester. This involves a weighing of the requester’s right of access to his or her own personal information against the other individual’s right to protection of their privacy. Thus, I will first consider whether section 38(b) applies and then whether the Police properly exercised their discretion under this section.