Access to Information Orders
Decision Information
This appeal concerns a decision of the London Police Service (the Police) made pursuant to the provisions of the
Municipal Freedom of Information and Protection of Privacy Act (the Act). The requester (now the appellant) requested information relating to a specific motor vehicle accident in which he was involved.
The Police issued a decision letter in which they granted access to portions of five records and denied access to other portions of these records pursuant to section 38(a) of the
Act, read in conjunction with the law enforcement exemptions in sections 8(1)(c) (investigative techniques), 8(1)(d) (confidential source of information) and 8(1)(l) (unlawful act/control of crime), and section 38(b) of the Act, read in conjunction with the section 14(1) personal privacy exemption, and supported by sections 14(2)(h) (information supplied in confidence) and 14(3)(b) (investigation into violation of law). In making their decision to deny access to some of the requested information the Police claimed the application of section 15(a) (information available to the public). The Police also claimed that information contained in one of the records is nonresponsive to the appellant’s request.
The appellant appealed the Police’s decision.
Decision Content
NATURE OF THE APPEAL:
This appeal concerns a decision of the London Police Service (the Police) made pursuant to the provisions of the Municipal Freedom of Information and Protection of Privacy Act (the Act). The requester (now the appellant) requested information relating to a specific motor vehicle accident in which he was involved.
Police officer’s notes (2 pages)
Severed
Responsiveness of record
38(a)/8(1)(d)
38(b)/14
2 |
Motor vehicle accident report, dated May 22, 2003 (2 pages) |
Severed |
38 (a)/15(a) |
3 |
Incident report, dated May 22, 2003 (1 page) |
Severed |
38(a)/8(1)(d) 38(b)/14 |
4 |
Incident report, dated May 23, 2003 (1 page) |
Severed |
38(a)/8(1)(d) 38(b)/14 |
5 |
General occurrence report (7 pages) |
Severed |
38(a)/8(1)(c) 38(b)/14 52(3) |
DISCUSSION:
ARE PORTIONS OF RECORD 1 MARKED NON-RESPONSIVE BY THE POLICE RESPONSIVE TO THE APPELLANT’S REQUEST?
To be considered responsive to the request, records must “reasonably relate” to the request [Order P-880].
The Police take the position that two portions of record 1 marked non-responsive are not responsive to the appellant’s request. In support of this position the Police state that this information relates to other incidents and persons that a police officer was involved with before and after the motor vehicle accident on the same day.
The appellant claims that the information marked non-responsive is responsive to his request. However, he has not provided any evidence to support his position.
Record 1 comprises two pages of a police officer’s notebook. I am satisfied that the portions of record 1 marked non-responsive have absolutely nothing to do with the motor vehicle accident involving the appellant and the affected person or the appellant’s request. On the contrary, these portions of record 1 are clearly related to other matters that this police officer had investigated and recorded in his notebook on the same day as the motor vehicle accident.
Accordingly, I find that the portions of record 1 marked non-responsive are, in fact, not responsive to the appellant’s request.
DOES PART OF RECORD 5 QUALIFY AS A LABOUR RELATIONS OR EMPLOYMENT RECORD?
Preliminary issue: can section 52(3) apply to part of a record?
As stated above, the Police have taken the position that section 52(3) applies to a portion of the information at issue in record 5. Generally, this office has interpreted section 52(3) to be record-specific and fact-specific. Therefore, if section 52(3) applies to a specific record, in the circumstances of a particular appeal, and none of the exceptions listed in section 52(4) are present, then the record is excluded from the scope of the Act and not subject to the Commissioner’s jurisdiction.
In light of the Police’s position with regard to record 5, I must decide whether section 52(3) can apply to a discrete portion of a record, while the balance of the record remains subject to the Act. The Police have raised the application of section 52(3) to page 7 of record 5. This page consists of information relating to a “critique” of a police officer’s occurrence report, with specific instructions to “correct” portions of the report.
In Order PO-1696, Adjudicator Holly Big Canoe found that section 65(6) (the provincial equivalent of section 52(3)) could apply to part of a record. In that case, record 2 had been prepared by the Audit Services Branch of the Ministry of the Attorney General (the Ministry), and used by the Court Services Division of the Ministry to review the performance of certain Ministry employees, or their compliance with financial policies and guidelines, and to receive recommendations to correct any problems identified by the auditors. Adjudicator Big Canoe, in concluding that section 65(6) could apply to part of a record, stated:
Record 2 […] was prepared to investigate two unrelated matters: the circumstances surrounding the issuance of a divorce certificate prior to a divorce having been granted; and to appraise the effectiveness of the financial management and operational controls in the family law section of the court. Although the first matter reviewed in this record is not specifically focussed on the employment of any specific person or persons, given the particular circumstances (which are only apparent on reviewing the record) I consider it reasonable to conclude that it is an “employment-related matter” as the term is used in section 65(6).
However, the second aspect of the audit, the appraisal of the effectiveness of the financial management and operational controls in the family law section of the court, is not what I would consider an “employment-related matter”. I do not agree with the Ministry’s submission that this term should include a general audit which does not relate to the employment of an individual or individuals specifically, but generally relates to the Ministry’s “right to control the method of carrying out work”.
However, even if I were to find that each of the records involves an employment‑related matter, the Ministry would still have to establish that it was a matter in which the Ministry “has an interest”.
While ultimately Adjudicator Big Canoe concluded that section 65(6)3 did not apply to record 2 since the Ministry had not established the requisite “interest” in an employment‑related matter, she did, significantly, find that section 65(6) could apply to part of a record.
Senior Adjudicator David Goodis reconsidered Adjudicator Big Canoe’s decision in PO-1696 (see Order PO-2073-R) and found that section 65(6)3 applied to all of record 2. However, in making his decision Senior Adjudicator Goodis did not comment on the application of section 65(6) to part of a record.
Applying Adjudicator Big Canoe’s finding to this appeal, I am satisfied that section 52(3) could apply to part of record 7. In this case, pages 1-6 of record 5 document a police officer’s investigation into a motor vehicle accident, which is the subject of this appeal. I find that page 7 is notionally separate and discrete from the officer’s investigation report. It represents the observations and instructions of another police officer regarding steps that must be taken to correct portions of the report. Accordingly, I am satisfied that pages 1-6 and page 7 can be viewed separately. Having reached this conclusion, I must now examine whether section 52(3) applies to exclude page 7 of record 5 from the scope of the Act.