Sections 9(1)(b) and (d) state:

A head shall refuse to disclose a record if the disclosure could reasonably be expected to reveal information the institution has received in confidence from,

(b)   the Government of Ontario or the government of a province or territory in Canada; or

(d)   an agency of a government referred to in clause … (b);

General

For this exemption to apply, the institution must demonstrate that disclosure of the record “could reasonably be expected to” lead to the specified result.  To meet this test, the institution 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.)].

If disclosure of a record would permit the drawing of accurate inferences with respect to information received from another government, it may be said to “reveal” the information received [Order P-1552].

Section 9(1)(d)

“Agency of a government”

The first question to be addressed is whether the information in question came from an agency of a government.  As indicated in the passage from the Police representations set out earlier, the Police received information from an OPP officer assigned to the Alcohol and Gaming Commission. There is ambiguity in this statement and in other statements in the Police representations as to whether the person who provided the information was representing the Ontario Provincial Police or the Ontario Alcohol and Gaming Commission in dealing with the Police.  However, since it is clear that he was acting on behalf of one or the other of these agencies, it is unnecessary to determine which organization he represented, as both of them are agencies of the Ontario Government, and therefore fall within section 9(1)(d) of the Act. 

To satisfy the “in confidence” component of the section, the parties resisting disclosure must establish that the supplier had a reasonable expectation of confidentiality, implicit or explicit, at the time the information was provided.  This expectation must have an objective basis [Order PO-2020].

In determining whether an expectation of confidentiality is based on reasonable and objective grounds, it is necessary to consider all the circumstances of the case, including whether the information was

• communicated to the institution on the basis that it was confidential and that it was to be kept confidential

• treated consistently in a manner that indicates a concern for its protection from disclosure by the affected person prior to being communicated to the government organization

• not otherwise disclosed or available from sources to which the public has access

• prepared for a purpose that would not entail disclosure [Order PO-2043]

In my view, similar considerations apply to determination of whether information was received in confidence under section 9 of the Act.

In determining whether information was received in confidence for the purpose of this section it is also necessary to consider all the circumstances of the case.  This would include

• the nature of the information

• whether the information was prepared for a purpose that would entail disclosure

• whether the information was communicated to the institution on the basis that it was confidential and that it was to be kept confidential

• whether the institution receiving the information agreed explicitly or implicitly to accept it on the basis that it was confidential and that it was to be kept confidential

• whether the government agency that supplied the information treated it consistently in a manner that indicates a concern for its protection from disclosure prior to communicating it to the institution

• whether the institution that received the information treated it consistently in a manner that indicates a concern for its protection from disclosure after receiving it

• whether the information was otherwise disclosed or available from sources to which the public has access, either before or after the government or government agency provided it to the institution.

In considering whether the information about the appellant was received in confidence, the statements of intent and expectation made by the Police in their decision on the appellant’s access request and made by the Police and the affected person in this appeal are significant evidence.

In their representations, the Police state:

The information was received in confidence.

…

In order to obtain information from this agency, the Thunder Bay Police would be required to explain the circumstances and the need for the information.  As such, without having any suspects apprehended and in police custody, the sharing of the information between agencies would be done so (sic) on the absolute mutual understanding that the information is shared in confidence, so as not to compromise, harm or hinder the continuance of the investigation.  Confidentiality is paramount so as not to cause any unnecessary hardship in the gathering of evidence, the protection of the identity of informants as well as witnesses.  It is also a requirement to maintain the confidentiality of the information as the information shared may not necessarily always be accurate or reliable. (Emphasis added).

In my view, the considerations set out in the passage above (apart from “protection of the identity of informants” which is addressed below) do not support a claim of expectation of confidentiality because this particular information could not reasonably be expected to result in any of the potential impacts set out there.

In the document provided to this inquiry, the affected person also addressed the issue of confidentiality. Without revealing the contents of that document, I observe that the considerations set out in the first, second, and fourth sentences of the second paragraph do not appear to have any relationship to the circumstances of this case, and therefore are of limited value in supporting the claim of an expectation of confidentiality for this particular information. The third sentence relates to the case only in a very general way.

While statements of intention made after-the-fact (in this case more than two years after the information was received) are not to be taken lightly, it is important to consider the circumstances of this particular case in determining what weight to give these representations.  It is necessary to keep in mind that if the statements made about the appellant are untrue then the affected person and the Thunder Bay Police Force, whose officer made certain allegations in a public forum against the interests of the appellant, may both have a motive to attempt to substantiate the existence of an expectation of confidentiality held at the time of the receipt of the information.  The appellant asserts that the statements about her allegedly made by the affected person to the Police and the statements about her allegedly made by the investigating officer to the Board are both untrue.  The evidence of the Police and the document provided by the affected person do not contradict these assertions.  Therefore, the possibility of self-serving motives by both in alleging an expectation of confidentiality must be betaken into account in weighing the statements in the affected party’s document and the representations of the Police.

I also note that the Police indicated that they considered the fact that information may be mistaken or inaccurate as a factor in favour of considering it to be confidential, rather than in favour of disclosing it so that it can be corrected.

In my view, in the context of this case, it is particularly important to consider whether there is any evidence to corroborate these after-the-fact assertions.

I note that there is no evidence of any explicit agreement between the Police and the government agency at the time the information was provided or evidence of any explicit requests for or assurances of confidentiality given at that time or later.  Nor is there evidence of any actions taken by either party contemporaneous with the supply and receipt of the information in question to protect the information, which could indicate an implicit expectation of confidentiality.

Whether the government agency that supplied it consents to disclosure of information may be useful evidence of prior intent or expectations of that agency.  As an aside, the consent of the agency that supplied the information also negates the application of the exemption under section 9(2), which requires disclosure in those circumstances.  However, the head of the institution was not asked whether the institution consents to disclosure.  The affected person declined to consent to disclosure of the record when approached by the Mediator.  The affected person’s refusal in this case has limited utility in determining the prior expectations of the agency, given the potentially self-serving nature of that decision.

In my view, the most significant evidence in regard to expectation of confidentiality is the fact that, according to the uncontradicted representations of the appellant, the investigating officer made “statements…that I am a well known prostitute in TH. Bay and have been thrown out of the TH. Bay charity casino several times.  These statements…were sworn in (sic) by [the investigating officer] at the Criminal Compensation hearing held on October 23/03 on James St. S. in Thunder Bay.  At the hearing were [two named individuals] who witnessed these statements… .”

The appellant’s counsel made the following submissions about the actions of the investigating officer before the Criminal Injuries Compensation Board:

The situation is compounded by the conduct of  [the investigating officer] in airing this slanderous “information” in a public forum (i.e., a hearing of the Criminal Inquiries (sic) Compensation Board).  Not only was this “information” irrelevant to the proceedings, as the Board itself made clear in its Order, but was extremely hurtful and embarrassing to the Appellant and her family.

By bringing this so-called “information” forward in this fashion, [the investigating officer] removed himself (and hereby the Thunder Bay Police) from any right to protection by alleging some sort of confidentiality agreement with the informant, arguing the “greater good”, or claiming fear of prosecution under the Police Services Act.

The investigating officer’s disclosure of that particular information in a public forum and in the presence of the appellant appears to be inconsistent with any agreement or understanding between the Police and the government agency at the time the information in the record was provided to the Police or with an intention by the Police at that time or later to maintain the confidentiality of the information in the record.

I have considered the possibility that the officer was compelled to provide this information to the Board and to do so in public.  However, I note that the Board is permitted to hear some sensitive information in camera.  Moreover, I have been provided with no evidence to support such a conclusion.  Also, the assertion of the appellant that the Board considered this information irrelevant does not suggest an inference that the disclosure was required by the Board and therefore not voluntary.

The Police also provided certain statutory provisions to demonstrate that police officers have a duty to keep certain information confidential.  However, these authorities only serve to support an inference that the investigating officer must not have considered the information that he released to be confidential, as an officer would not likely deliberately disclose in public information that he believed he was required by law to keep confidential.

In summary, there is strong evidence that the investigating officer did not consider the information that he supplied to the Board to be confidential, and this supports an inference that he also did not consider the information received from the government agency to be confidential.

Considering all of the circumstances, I find that the Police have not established that the information about the appellant was received in confidence and therefore section 9 does not prevent the disclosure of the information.

As indicated earlier, section 9 (1)(d) applies to information “supplied by” a government agency.

There is no evidence that the name and title of the official in question were supplied to the Police by the government agency.  There is no evidence as to how the investigating officer obtained this information.  He may already have known the identity and position of the official before being supplied with information about the appellant and he may have obtained it from a source other than the government agency.

Apart from this, in my view, section 9(1)(d) deals only with the information supplied by government agencies, and not with the identities of agency representatives who supply it.  This conclusion results both from a plain language reading of the section and from a purposive and contextual interpretation of the section. 

The section on its face is clear and unambiguous.  It states that information supplied by a government agency is exempt from disclosure.  It does not address the identity of individuals who supply this information.  When the Ontario Legislature intends in the Act and in other statutes to protect the identity of individuals who supply information, it states this explicitly, as in section 8(1)(d) of the Act:

A head may refuse to disclose a record if the disclosure could reasonably be expected to disclose the identity of a confidential source of information in respect of a law enforcement matter, or disclose information furnished only by the confidential source.

Similarly, section 14 of the Act authorizes a head to refuse to disclose an individual’s personal information to others in certain circumstances.  The Act makes it clear that this includes a person’s identity by specifically including this in the definition of “personal information” at s. 2(1)(h).

If the Legislature had intended to treat the identity of an individual supplying information as confidential, it could easily have done so, as it has in other legislation as well.  See, for example, s. 63(1)(e) of the Occupational Health and Safety Act and sections 51.4(16), 51.5(8) and 51.6(9) of the Courts of Justice Act. 

The U.S. Government has taken the same approach to the identification of sources of information in the Freedom of Information Act, 5 U.S.C. 552.  That Act states that the federal agencies must make information available to the public with certain exceptions.  One of these exceptions is:

Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings; (D) could reasonably be expected to disclose the identity of a confidential source…

As stated earlier, the purpose of this exemption is “to ensure that governments under the jurisdiction of the Act will continue to obtain access to records which other governments could otherwise be unwilling to supply without having this protection from disclosure”.  If section 9(1)(d) is interpreted to protect confidential information but not to protect the fact that an official has given some information that has not been revealed, this is unlikely to result in any harm to the government or government agency supplying information to an institution under the Act.  In cases where the disclosure of a name may reasonably be expected to harm inter-governmental relations, this may be addressed by other sections such as 8(1)(d) and (g).

Moreover, as suggested at the bottom of page 2 and top of page 3 of the Police representations, agencies such as the two involved here rely heavily on the mutual sharing of information.  Given the nature of relationships between agencies such as the Thunder Bay Police and the other agency in this case, communications such as this one are so routine that it is unlikely that an ability of an institution to release the name alone of a representative of such an agency who has carried out a routine function would result in reducing the flow of accurate information between the two agencies.  On the contrary, if this disclosure could have any impact, it is more likely that the impact would be more effort to ensure the accuracy of damaging information both when it is supplied by the government agency and when it is used by the receiving institution, a result that would be completely consistent with the purpose of the Act.

Therefore, I find that purposive and contextual approaches to the interpretation of s. 9(1)(d) do not require reading that section as including the name and title of the person providing the information.

I find, therefore, that the name and title of the official who allegedly supplied information about the appellant to the Police are not “information received from an agency” and therefore it does not qualify for exemption under section 9(1)(d) and is, accordingly, not exempt under section 38(a) in conjunction with section 9(1)(d).

Section 9(1)(b)

As noted earlier in this order, section 9(1)(b) applies to information received from the Government of Ontario or the government of a province or territory in Canada.  The information at issue was received either from the Ontario Provincial Police or the Alcohol and Gaming Commission.  These are agencies of the Ontario government, not the government itself, and I therefore find that the information does not qualify for exemption under section 9(1)(b), and is, accordingly, not exempt under section 38(a) in conjunction with section 9(1)(b).

ORDER:

1.          I order the Police to disclose the severed information in paragraph 3 of the “Supplementary Occurrence Report” before February 4, 2005 but not earlier than January 28, 2005.

2.          To verify compliance with this order, I reserve the right to require the Ministry to provide me with a copy of the material disclosed to the appellant pursuant to Provision 1.

Original Signed By:                                                                       December 31, 2004                                           

John Swaigen

POSTSCRIPT

Exercise Of Discretion

The section 38(b) exemption is discretionary, and permits an institution to disclose information, despite the fact that it could withhold it under sections 8 or 9.  If 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 the weighing of the requester’s right of access to his or her own personal information against other considerations.

I have found that the personal information about the appellant is not subject to the section 38(b) exemption.  Had I not made this finding, I believe it would have been necessary to send this matter back to the Police to clarify their exercise of discretion or to exercise their discretion based on proper principles, because it does not appear that the Police exercised their discretion properly.

As stated in previous orders of this office, one of the primary purposes of the Act is to allow individuals to have access to records containing their own personal information unless there is a compelling reason for non-disclosure. [Orders MO-1323, MO-1855].  One of the reasons for providing this access is to provide an opportunity to determine whether the information is accurate and request correction of inaccurate personal information.  This is particularly important in a case where there is evidence that public agencies may be spreading information which, if false, would be unfairly injurious to an individual’s reputation.

Under the heading “Issue C” in their representations, the Police address how they exercised their discretion.  They state that they balanced the appellant’s right of access to her personal information against other concerns.  They state that one of the factors they took into account was the fact that the official alleged to have provided the information did not want the information released to the appellant.  As indicated earlier, the Police also considered it relevant that “the information shared may not necessarily always be accurate or reliable”. 

It appears, therefore, that the Police treated the fact that information may be unreliable as a factor weighing against disclosure.  However, whether the possible inaccuracy or unreliability weighs against disclosure or in favour of it depends on the circumstances of the particular case.  In many cases, a prerequisite to determining the appropriate use of the fact that information may be mistaken is to investigate whether the information is in error, and if so, to consider the possible impact of that error.  Only by making such inquiries will the institution be in a position to make an informed decision as to how to apply this consideration.  There is no evidence that the Police made any effort to determine the truth of the statements about the appellant in the record at issue before exercising their discretion whether to disclose them.

In Order PO-1731, Adjudicator Laurel Cropley stated:

It is apparent that the accuracy and/or reliability of the information provided about the affected persons was questionable and/or incapable of being verified. …Previous orders of this office have generally held that the likelihood that information is inaccurate or unreliable is a factor which weighs against disclosure. However, in this case, I found that the comments made about the appellants by the affected persons qualifies as the personal information of the appellants.  In this context, I find that the fact that the information may be inaccurate or unreliable weighs in favour of disclosure.

Further, if that inaccurate information is used against the interests of the appellants, in my view, fairness would require that the appellant be apprised of the nature of the information.  Fairness in the Ministry’s application process is a relevant circumstance weighing in favour of disclosure.

In her representations, counsel for the appellant stated:

The Representations of the Thunder Bay Police suggest that there is some sort of “greater good” to be achieved by the protection of information given to a police officer in confidence, particularly if that information is given by a member of another police force.  In this instance, however, the information was unverified and blatantly wrong, and was passed on to [the investigating officer] by an officer/employee of the Alcohol and Gaming Commission, who did so either negligently or maliciously.  Surely no “greater good” can come from this, and no protection should be provided to the source thereof.

In my view, Adjudicator Cropley’s observations apply to this case.

If the alleged statements were made and were untrue, in my view the inaccuracy of this information would be a factor in favour of disclosing the information so that it can be corrected, not withholding it.