In response to the Notice, the appellant provided a three-page letter in which he addressed some of the issues in this appeal.  He also requested a lengthy extension of time to provide further representations, and I granted the requested time extension.  Following the extended time to provide representations, I again contacted the appellant to request his representations, and he again asked for further time to provide representations.  Finally, I wrote to the appellant asking him to provide his further representations by a prescribed date, and advising him that, following that date, I would proceed with this matter regardless of whether or not he provided further representations.  The appellant has not provided me with any further representations.

PRELIMINARY MATTER

The Police take the position that pages 15 through 32 of the records, which consist of the Accident Report and the appended notes, are currently available to the public and are, accordingly, exempt from disclosure on the basis of the exemption in section 15(a) of the Act.  They state:

Accident Reports are available for a set fee from the [Police], as well as from the Ministry of Transportation.  If “field notes” are appended to the … Report, the statements contained therein are also available from the [Police] for a fee … 

In the material provided to me by the appellant, he indicates that he has paid for and obtained a number of documents, including the Accident Report.  In the circumstances, and based on this information, I am satisfied that access to pages 15 through 32 is no longer at issue, as the appellant has obtained these records.  I will not, accordingly, address the application of the exemptions claimed for these records.

RECORDS:

The records remaining at issue consist of the 11 pages or portions of pages of records to which access was denied on the basis of the exemptions described above.  These records consist of portions of a Computer Assisted Dispatch Report (an I/CAD Report), and police officer’s notes.

In addition, the Public Complaint Investigation File (identified as Record 36 and numbering over 240 pages) is at issue, as the Police take the position that it falls outside the scope of the Act on the basis of section 52(3) of the Act.

DISCUSSION:

APPLICATION OF THE ACT

The Police claim section 52(3)1 applies to Record 36, which is the file relating to the investigation of the appellant’s public complaint.

General Principles

Section 52(3)1 states:

Subject to subsection (4), this Act does not apply to records collected, prepared, maintained or used by or on behalf of an institution in relation to any of the following:

1.         Proceedings or anticipated proceedings before a court, tribunal or other entity relating to labour relations or to the employment of a person by the institution.

If section 52(3) applies to the records, and none of the exceptions found in section 52(4) applies, the records are excluded from the scope of the Act.

The term “in relation to” in section 52(3) means “for the purpose of, as a result of, or substantially connected to” [Order P-1223].

The term “labour relations” refers to the collective bargaining relationship between an institution and its employees, as governed by collective bargaining legislation, or to analogous relationships [Order PO-2157, Ontario (Minister of Health and Long-Term Care) v. Ontario (Assistant Information and Privacy Commissioner), [2003] O.J. No. 4123 (C.A.)]. 

The term “employment of a person” refers to the relationship between an employer and an employee.  The term “employment-related matters” refers to human resources or staff relations issues arising from the relationship between an employer and employees that do not arise out of a collective bargaining relationship [Order PO-2157].

If section 52(3) applied at the time the record was collected, prepared, maintained or used, it does not cease to apply at a later date [Ontario (Solicitor General) v. Ontario (Assistant Information and Privacy Commissioner) (2001), 55 O.R. (3d) 355 (C.A.), leave to appeal refused [2001] S.C.C.A. No. 507].

Section 52(3) may apply where the institution that received the request is not the same institution that originally “collected, prepared, maintained or used” the records, even where the original institution is an institution under the Municipal Freedom of Information and Protection of Privacy Act [Orders P-1560, PO-2106].

Section 52(3)1:  court or tribunal proceedings

Introduction

For section 52(3)1 to apply, the institution must establish that:

1.         the record was collected, prepared, maintained or used by an institution or on its behalf;

2.         this collection, preparation, maintenance or usage was in relation to proceedings or anticipated proceedings before a court, tribunal or other entity; and

3.         these proceedings or anticipated proceedings relate to labour relations or to the employment of a person by the institution.

Part 1:  collected, prepared, maintained or used

The Police submit that the records which are contained in the Public Complaint Investigation file were collected, prepared or maintained by the Police.  They state:

Under Part VI of the Police Services Act (the PSA), the Chief of Police is obliged to establish and maintain a Public Complaint Investigation Bureau within the Police Service, to investigate public complaints against police officers.  During the course of those investigations, evidence and other information is gathered and stored.

I have carefully reviewed the records which the Police claim fall outside the scope of the Act on the basis of section 52(3)1.  They consist of approximately 241 pages (not including 32 cover pages contained throughout the file, which describe the attached portion of the file), as well as an additional 23 pages of material which are duplicates of the appellant’s complaint and other documents contained in the other 241 pages.  From my review of the records in the Public Complaint Investigation file, I am satisfied that these records were collected, prepared or maintained by the Police.  Therefore, the first part of the test under section 52(3)1 has been met.

Part 2:  proceedings before a court or tribunal

The word “proceedings” means a dispute or complaint resolution process conducted by a court, tribunal or other entity which has the power, by law, binding agreement or mutual consent, to decide the matters at issue [Orders P-1223, PO-2105-F].

For proceedings to be “anticipated”, they must be more than a vague or theoretical possibility.  There must be a reasonable prospect of such proceedings at the time the record was collected, prepared, maintained or used [Orders P-1223, PO-2105-F].

The word “court” means a judicial body presided over by a judge [Order M-815].

A “tribunal” is a body that has a statutory mandate to adjudicate and resolve conflicts between parties and render a decision that affects the parties’ legal rights or obligations [Order M-815].

“Other entity” means a body or person that presides over proceedings distinct from, but in the same class as, those before a court or tribunal.  To qualify as an “other entity”, the body or person must have the authority to conduct proceedings and the power, by law, binding agreement or mutual consent, to decide the matters at issue [Order M-815].

The Police submit that the records were collected and maintained in relation to proceedings or anticipated proceedings before a court, tribunal or other entity.  They state that the records relate to the investigation into the appellant’s complaint about an identified police officer, and that:

When the investigation has been completed, the person in charge shall cause a final report to be prepared and shall send copies of it to [various identified parties].  Under section 90(1) of the PSA, the Chief of Police shall review the final report and make one of the following decisions:

a)      decide that no future action is necessary;

b)      admonish the police officer in accordance with subsection 59(1) of the PSA;

c)      hold a disciplinary hearing under section 60 of the PSA;

d)     order that all or part of the complaint be the subject of a hearing by a board of inquiry; or

e)      cause an information to be laid against the police officer and refer the matter to the Crown Attorney for prosecution.

In the material provided by the appellant, one of the issues he raises is whether all of the information contained in the Public Complaint Investigation file actually relates to the investigation of the complaint.  He takes the position that records created for one purpose, such as an accident investigation, and in advance of a public complaint, ought not to fall within the ambit of section 52(3) simply because they reside in the complaint file.

I accept the position taken by the appellant with respect to the nature of records contained in a public complaint file.  Merely placing records in a file of that nature does not mean that these records are collected, prepared or maintained “in relation to” proceedings or anticipated proceedings before a court, tribunal or other entity.  Senior Adjudicator John Higgins clearly set out this distinction in Order M-927 where he stated:

Section 52(3) is record-specific and fact-specific.  If this section 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.

…[The records at issue] consist of pages from a police officer’s notebook, five witness statements, a typed Motor Vehicle Collision Report with two supplementary reports, and photographs of the damaged vehicles.

In my view, in assessing the possible application of section 52(3) in this case, it is important to note that the request was essentially directed at the contents of the police investigation file concerning the accident, and any related entries in officers’ notebooks.  It was not a request for information relating to the allegations against the investigating officers.

It is difficult to imagine any category of records which would be more integral to the basic mandate of a police force than the files kept in connection with day-to-day police investigations of incidents occurring within the force’s jurisdictional boundaries, and related entries in officers’ notebooks.  Moreover, although some of them are prepared by employees of the Police, such records are not, in essence, related to employment or labour relations.  Rather, they record the activities and conclusions of the investigating officers and, at times, others who conduct forensic analyses, etc.  Generally speaking, such records are subject to the Act.

It is an established principle of statutory interpretation that an absurd result, or one which contradicts the purpose of the enactment, is not a proper implementation of the Legislature’s intention.  In Driedger on the Construction of Statutes (3rd ed., Butterworths), by Ruth Sullivan, the author states (at page 89):

Legislative schemes are supposed to be elegant and coherent and operate in an efficient manner.  Interpretations that produce confusion or inconsistency or undermine the efficient operation of a scheme are likely to be labelled absurd.

Applying section 52(3) to the information at issue in this appeal would have the effect of permanently removing certain information maintained by the Police with respect to their basic mandate (i.e. protection of the peace and investigation of possible criminal behaviour which comes to their attention) from the scope of the Act, while most information of this nature would remain subject to the Act.  As noted above, this information is not, in essence, related to employment or labour relations, and in my view, broadly speaking, it is to these latter categories of information that section 52(3) is intended to apply.  Moreover, applying this section in the context of this appeal would result in the inconsistency that some files kept in connection with day-to-day police investigations of incidents occurring within the force’s jurisdictional boundaries and related entries in officers’ notebooks would be subject to the Act, while others would not be.

In my view, therefore, it would be a manifestly absurd result, and one not intended by the Legislature, if the records at issue were removed from the scope of the Act because they happen to have been reviewed in connection with an investigation of an employee’s conduct.

On the other hand, in the context of a request for the file relating to an investigation of a police officer’s conduct, where copies of incident reports, etc. from the original investigation formed part of that file, section 52(3) could apply to that entire file including those particular copies.  However, in my view, the main investigation file housing the original incident reports, etc., and related officers’ notebook entries, would remain subject to the Act.

In this excerpt from Order M-927, Senior Adjudicator Higgins clearly identified the important distinction between records or copies of records which relate to day-to-day police investigations of incidents occurring within the force’s jurisdictional boundaries, and copies of those same records which may reside in a file relating to an investigation of a police officer’s conduct.  I accept this distinction for the purpose of my review of the records at issue in this appeal, and the possible application of section 52(3).

As identified above, in this appeal the Police have provided access to the 35 pages of records relating to the motor vehicle accident, and denied access to other portions on the basis of the exemptions in the Act.  These 35 pages of records relate directly to the accident involving the appellant, and were created in the context of investigating that accident.  Accordingly, these records are subject to the Act and they relate to the “day-to-day police investigations of incidents” occurring “within the force’s jurisdictional boundaries”, and the Police have properly provided an access decision on them.

I have carefully reviewed all of the records contained in the Public Complaint Investigation file.  They include copies of the 35 pages of records relating solely to the motor vehicle accident.  Of the other records contained in the Public Complaint Investigation file, I am satisfied that all of them were collected, prepared or maintained directly in relation to the complaints about the conduct of the police officer who investigated the incident.  These records include the complaints made about the conduct of the officer, and the investigative notes, correspondence, and conclusions resulting from the investigation into the conduct of the officer.  On my review of these records, other than the 35 pages of records that relate only to the motor vehicle accident, no other records contained in the Public Complaints Investigation file relate solely to the “day-to-day police investigation” of the accident involving the appellant.

Accordingly, based on my review of the Public Complaints Investigation file, I find that it was collected, prepared or maintained in relation to anticipated proceedings under the PSA.  As a result, I find that the second part of the test under section 52(3)1 has been met with respect to these records.

Part 3:  labour relations or employment

Part 3 of the test under section 52(3)1 stipulates that the relevant proceedings (that is, those referred to in Requirement 2) must relate to labour relations or to the employment of a person by the institution.

The Police submit the following in regard to part 3 of the test under section 52(3)1:

A disciplinary hearing under section 60 of the PSA or a board of inquiry constituted under section 53(1) is a dispute resolution process conducted by a court, tribunal or other entity which has, by law, the power to decide disciplinary matters.  Therefore, it is our position that these various proceedings or anticipated proceedings relate to the employment of a sworn police officer.

The Police also refer to Orders M-835 and M-899, in which this office found that proceedings under Part V of the Police Services Act relate to the employment of a police officer.

The appellant did not provide representations on this issue.

I agree with the Police that disciplinary hearings under the identified sections of the PSA relate to “the employment of a person by the institution” for the purposes of section 52(3)1.

On my review of the circumstances of this appeal, I find that the investigation of the appellant’s complaint regarding the actions of the police officer could have led to the identified disciplinary proceedings against the officer.  Therefore, I find that Part 3 has been satisfied, as the collection, preparation or maintenance of the records by the Police was in relation to proceedings or anticipated proceedings concerning the employment of the officer.

In conclusion, I find that section 52(3)1 applies to the records contained in the Public Complaints Investigation file, as the Police have established that:

1) the records were collected, prepared or maintained by the Police;

2) this collection, preparation or maintenance was in relation to proceedings or anticipated proceedings before a court, tribunal or other entity; and

3) these proceedings or anticipated proceedings relate to the employment of a police officer.

As section 52(3)1 applied at the time the records were collected, prepared or maintained, it did not cease to apply at a later date.  “Once effectively excluded from the operation of the Act, the records remain excluded”. [Ontario (Solicitor General) v. Ontario (Assistant Information and Privacy Commissioner) (2001), 55 O.R. (3d) 355 (C.A.), leave to appeal refused [2001] S.C.C.A. No. 507].  Therefore, the section 52(3)1 exclusionary provision still applies even though the Public Complaints Investigation has been concluded.

Accordingly, I find that all three parts of the test under section 52(3)1 of the Act have been met for the records contained in the Public Complaints Investigation file.  Further, the records do not fall within the exclusionary provision of section 52(4).  Accordingly, I uphold the decision of the Police that the records are excluded from the operation of the Act under section 52(3)1.

I will now review the application of the exemptions claimed by the Police for the 11 pages or portions of pages of records to which access was denied on the basis of the exemptions identified in the decision letter.

PERSONAL INFORMATION/INVASION OF PRIVACY

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.  That term is defined in section 2(1) as follows:

“personal information” means recorded information about an identifiable individual, including,

(a)        information relating to the race, national or ethnic origin, colour, religion, age, sex, sexual orientation or marital or family status of the individual,

(b)        information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,

(c)        any identifying number, symbol or other particular assigned to the individual,

(d)       the address, telephone number, fingerprints or blood type of the individual,

(e)        the personal opinions or views of the individual except where they relate to another individual,

(f)        correspondence sent to an institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to that correspondence that would reveal the contents of the original correspondence,

(g)        the views or opinions of another individual about the individual, and

(h)        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;

The Police take the position that the records contain the personal information of identifiable individuals, and state:

The exempted material includes the names, dates of birth, addresses, telephone numbers and statements of the persons who called the police concerning the accident.

Although the Police do not provide representations on whether the records contain the personal information of the appellant, their reliance on the exemption in section 38 (which applies only when an individual is requesting his own personal information) for all of the records remaining at issue, suggest that the Police are of the view that the records contain the personal information of the appellant.

Following my review of the records, I find that all of the records contain the personal information of the appellant, as they include information relating to the accident in which he was involved, as well as other personal information relating to him (paragraph (h) of the definition).

I also find that the records contain the personal information of other identifiable individuals including their addresses and telephone numbers (paragraph (c)), their personal views and opinions (paragraph (e)) and their names along with other personal information relating to them (paragraph (h)), including statements a number of identifiable individuals made to the Police.

DISCRETION TO REFUSE ACCESS TO APPELLANT’S OWN PERSONAL INFORMATION /LAW ENFORCEMENT

As set out above, section 36(1) of the Act gives individuals a general right of access to their own personal information held by a government body.  Section 38 provides a number of exceptions to this general right of access.

The Police rely on section 38(a) to deny access to a small portion of page 3 of the records.  Under section 38(a), an institution has the discretion to deny access to an individual's own personal information in instances where the exemption in section 8 would apply to the disclosure of that personal information.

The Police claim that section 8(1)(l) applies to a Canadian Police Information Centre (CPIC) unique terminal Originator’s Number (ORI) contained on the I/CAD Report on page 3 of the records.  Section 8(1)(l) states:

A head may refuse to disclose a record where the disclosure could reasonably be expected to,

facilitate the commission of an unlawful act or hamper the control of crime.

The Police state that “The severed information relates to the terminal numbers of the various computer locations.  It is through these numbers that a particular terminal is accessed”.  The Police also refer to the CPIC reference manual, and identify their concerns regarding the harms which may result if information of this sort is disclosed and the integrity of the system compromised.  As well, the Police refer to Orders P-1214 and M-933 in support of their position that this information ought not to be disclosed.  In particular, they refer to Order P-1214 in which Adjudicator Hale found that the disclosure of “this type of information could compromise the security of the CPIC computer system and would make unauthorized and illegal access to the CPIC easier.”  They also refer to the following excerpt from Order M-933, in which former Adjudicator Mumtaz Jiwan stated:

The Police submit that the disclosure of this type of information could compromise the security of the CPIC security system and would make unauthorized and illegal access to the CPIC system easier, contrary to various provisions of the Criminal Code  relating to the unauthorized use of data contained in computer records.  I accept the submissions of the Police.  I find that disclosure of the access codes for the CPIC system could reasonably be expected to facilitate the commission of an unlawful act, the unauthorized use of the information contained in the CPIC system.  Accordingly, I find that the codes qualify for exemption from disclosure under section 8(1)(l) of the Act.

The appellant does not address this issue.

In the circumstances of this appeal, and based on the representations of the Police, I am satisfied that the disclosure of the ORI number contained on the I/CAD Report on page 3 of the records could reasonably be expected to facilitate the commission of an unlawful act or hamper the control of crime, and that it qualifies for exemption under section 8(1)(l).  Accordingly, this portion of page 3 is exempt from disclosure under section 38(a).

DISCRETION TO REFUSE ACCESS TO APPELLANT’S OWN PERSONAL INFORMATION/INVASION OF PRIVACY

As identified above, 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 exceptions to this general right of access, including section 38(b).  Section 38(b) introduces a balancing principle that must be applied by institutions where a record contains the personal information of both the requester and another individual.  In this case, the Police must look at the information and weigh the appellant’s right of access to his own personal information against the affected persons’ right to the protection of their privacy.  If the Police determine that release of the information would constitute an unjustified invasion of the affected person's personal privacy, then section 38(b) gives the Police the discretion to deny access to the appellant’s personal information.

In determining whether the exemptions in sections 14(1) or 38(b) apply, sections 14(2), (3) and (4) of the Act provide guidance in determining whether disclosure of personal information would result in an unjustified invasion of the affected person’s personal privacy.  Section 14(2) provides some criteria for the Police to consider in making this determination; section 14(3) lists the types of information whose disclosure is presumed to constitute an unjustified invasion of personal privacy; and section 14(4) refers to certain types of information whose disclosure does not constitute an unjustified invasion of personal privacy.  The Divisional Court has stated that once a presumption against disclosure has been established, it cannot be rebutted by either one or a combination of the factors set out in section 14(2) (John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767). 

The Police take the position that disclosure of the withheld information on pages 1 and 5 through 14 of the records is presumed to constitute an unjustified invasion of the privacy of individuals other than the appellant under the presumption in sections 14(3)(b) of the Act, which reads:

A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy if the personal information,

            was compiled and is identifiable as part of an investigation into a possible violation of law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation;

In support of their position that the records were compiled and are identifiable as part of an investigation into a possible violation of law for the purpose of section 14(3)(b), the Police state:

The Police investigated the … accident in order to determine whether evidence indicated that the driver of the vehicle or operator of the bicycle had – either inadvertently or by design – contravened the Criminal Code of Canada  or the Highway Traffic Act.

The Police also refer to previous orders (MO-1256, MO-1192) which confirm that the presumption in section 14(3)(b) can apply even if no criminal proceedings were commenced against any individuals, and that the presumption only requires that there be an investigation into a possible violation of law.

Findings

The portions of the records which the Police claim qualify for exemption under section 38(b) are the name, address and contact information of a witness on page 1 of the records, and the names, addresses and contact information of witnesses, along with their statements made to police officers, contained on pages 5 to 14 of the records.  I note that the statements on pages 5 to 14 of the records are the same statements contained on pages 22 to 31 of the records, which I addressed under the “preliminary issue” discussion (above) and which have been disclosed to the appellant as attachments to the Accident Report (with the names and contact information of the individuals deleted).  Accordingly, the sole information remaining at issue in these records are the names and contact information of these identifiable individuals.

I have carefully reviewed the records at issue in this appeal and find that they were compiled by the Police in the course of investigating the circumstances of the accident involving the appellant.  On the basis of the representations provided by the Police, I am satisfied that the personal information remaining at issue was compiled and is identifiable as part of the Police investigation into a possible violation of law, and falls within the presumption in section 14(3)(b).

Accordingly, I find that the disclosure of that personal information is presumed to constitute an unjustified invasion of the personal privacy of the identified individuals under section 14(3)(b) of the Act.

As set out above, the Divisional Court has stated that once a presumption against disclosure has been established, it cannot be rebutted by either one or a combination of the factors set out in section 14(2) (John Doe v. Ontario).  In addition, I find that section 14(4) does not apply, and the appellant has not raised the application of the “public interest override” in section 16.  Accordingly, the records are exempt from disclosure under section 38(b) of the Act. 

The section 38(b) exemption is discretionary and permits the Police to disclose information, despite the fact that it could be withheld.  On appeal, this office may review the Police’s decision in order to determine whether it exercised its discretion and, if so, to determine whether it erred in doing so (Orders PO-2129-F and MO-1629).

I have reviewed the circumstances surrounding this appeal and the Police’s representations on the manner in which they exercised their discretion.  Based on this information, as well as on the fact that portions of records (including the appellant’s own statements, and the statements of others) were disclosed to the appellant, I am satisfied that the Police have not erred in the exercise of their discretion not to disclose the remaining information contained in the records.

ORDER:

I uphold the decision of the Police.

Original Signed By:                                                                             December 12, 2006                

Frank DeVries