Access to Information Orders
Decision Information
Police records including general occurrence reports, records of arrest, witness list, I/CAD event details reports and police officers’ notes Section 2(1) (definition of personal information) - records contain personal information. Section 38(b) (personal privacy) partly upheld. Section 16 - not applied. Section 54(c) - not applied Police ordered to disclose a portion of a page of a record that contains only the personal information of the appellant.
Decision Content
NATURE OF THE APPEAL:
The Toronto Police Services Board (the Police) received a request from an individual under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for all Police records that related to him.
The Police identified records responsive to the request and granted partial access to them upon payment of a fee. The Police relied on the discretionary exemptions in sections 38(a) (refuse to disclose requester’s own information), in conjunction with section 8(1)(l) (facilitate commission of an unlawful act); and 38(b) (personal privacy) with particular reference to the factor at section 14(2)(g) (information unlikely to be accurate or reliable) and the presumption at section 14(3)(b) (information compiled and identifiable as part of an investigation) of the Act to deny access to the portions they withheld. The Police also indicated that some of the withheld information was not responsive to the request.
The requester (now the appellant) appealed the decision denying access.
At mediation, the appellant agreed that the withheld Police codes, along with any non-responsive information, could be removed from the scope of the appeal. As a result, that information and the application of the discretionary exemption at section 38(a), in conjunction with section 8(1)(l) of the Act, is no longer at issue in this appeal.
Mediation did not completely resolve the appeal and it was moved to the adjudication stage of the process.
A Notice of Inquiry setting out the facts and issues in the appeal was sent to the Police, initially. The Police filed representations in response to the Notice. They asked that a portion of their representations not be shared with the appellant due to confidentiality concerns. A Notice of Inquiry, along with the non-confidential representations of the Police, was then sent to the appellant. The appellant filed representations in response.
RECORDS:
The records total 127 pages and consist of General Occurrence Reports, Record of Arrest, Supplementary Record of Arrest, Synopsis for a Guilty Plea, Promise to Appear, Police and Civilian Witness lists, Case Tracking Report, I/CAD Event Details Report and excerpts from Police Officers’ notebooks. Remaining at issue are the portions of those records withheld by the Police.
DISCUSSION:
SCOPE OF THE REQUEST
The appellant sets out in his representations that he is not seeking access to information pertaining to his ex-wife but rather, “he is interested in obtaining first hand accounts of [any] incidents regarding his biological children which may be material in an ongoing Children’s Aid Society (CAS) matter, Family Court matter and wherein a hearing is scheduled at the Child and Family Services Review Board (CFSRB).”
As a result, in this order I will not be reviewing information pertaining solely to the appellant’s ex-wife and/or unrelated to “accounts of [any] incidents regarding his biological children”.
THE EXERCISE OF ACCESS RIGHTS ON BEHALF OF PERSONS UNDER SIXTEEN
In his representations, the appellant takes the position that he is entitled to the records relating to his children on the basis of section 54(c) of the Act. He submits that at the time of the request he had “lawful access with ‘care and control’ of [his] children”. He also takes the position that the request for access to the information of the children “should be treated as though the request came directly from the children”, and refers to Orders M-927 and MO-1535 in support of his position. Furthermore, a copy of a Superior Court of Justice judgment which deals with access and custody issues was attached to his initial request.
Section 54(c) of the Act states:
Any right or power conferred on an individual by this Act may be exercised,
if the individual is less than sixteen years of age, by a person who has lawful custody of the individual;
Previous orders have established that, under this section, a requester can exercise another individual’s right of access under the Act if he/she can demonstrate that
- the individual is less than sixteen years of age; and,
- the requester has lawful custody of the individual.
If the requirements have been satisfied, the requester is entitled to have the same access to the personal information of the child as the child would have. In these cases, the request for access to the personal information of the child will be treated as though the request came from the child him or herself (Order MO-1535).
In this appeal, the appellant refers to section 54(c), however, on my review of the appellant’s representations, as well as the Superior Court judgment attached to his request, I am not satisfied that the appellant has “lawful custody” of the children. The Superior Court judgment clearly states that custody of the children is granted to the mother, and that the appellant has certain access rights. Furthermore, the orders referred to by the appellant do not support the position that section 54(c) applies to a non-custodial parent. Accordingly, I find that section 54(c) does not apply in these circumstances of this appeal.
PERSONAL INFORMATION
In order to determine which sections of the Act may apply, it is necessary to decide whether the record contains “personal information” in accordance with section 2(1) of the Act and, if so, to whom it relates.
Section 2(1) of the Act defines “personal information”, in part, 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,
(g) the views or opinions of another individual about the individual, and
(h) the individual’s name where 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.
To qualify as “personal information”, it must be reasonable to expect that an individual may be identified if the information is disclosed [Order PO-1880, upheld on judicial review in Ontario (Attorney General) v. Pascoe, [2002] O.J. No. 4300 (C.A.)].
The list of examples of personal information under section 2(1) is not exhaustive. Therefore, information that does not fall under paragraphs (a) to (h) may still qualify as personal information [Order 11].
In my view, all of the records at issue contain the personal information of the appellant. This information qualifies as his personal information because it is recorded information about him that includes his address and telephone number (paragraph (d)), or contains his name along with other personal information about him (paragraph (h)).
The records also contain the personal information of other identifiable individuals. This information qualifies as their personal information because it contains their address and telephone numbers (paragraph (d)), or contains their names along with other personal information about them (paragraph (h)).
However, I find that the withheld information at the very top line of page 8 does not contain the personal information of anyone other than the appellant. As a result, I will order this information to be disclosed to him.
PERSONAL PRIVACY
If a record contains the personal information of the appellant along with the personal information of another individual, section 38(b) of the Act applies to render the information exempt from disclosure at the discretion of the Police.
Section 38(b) reads:
A head may refuse to disclose to the individual to whom the information relates personal information,
if the disclosure would constitute an unjustified invasion of another individual’s personal privacy.
Accordingly, under section 38(b) where a record contains personal information of both the appellant and another identifiable individual, and disclosure of that information would “constitute an unjustified invasion” of that other individual’s personal privacy, the Police may refuse to disclose that information to the appellant.
Despite this, the Police may exercise their discretion to disclose the information to the appellant. This involves a weighing of the appellant’s right of access to his own personal information against the other individual’s right to protection of their privacy.
The factors and presumptions in sections 14(1) to (4) provide guidance in determining whether the “unjustified invasion of personal privacy” threshold under section 38(b) is met.
If the information fits within paragraphs (a) to (e) of section 14(1), disclosure is not an unjustified invasion of personal privacy and the information is not exempt from disclosure under section 38(b).
Section 14(2) provides some criteria for the institution 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 under section 14(3), it cannot be rebutted by either one or a combination of the factors set out in 14(2) [John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767 (John Doe)] though it can be overcome if the personal information at issue falls under section 14(4) of the Act, or if a finding is made under section 16 of the Act that a compelling public interest exists in the disclosure of the record in which the personal information is contained which clearly outweighs the purpose of the exemption. [See Order PO-1764]
Section 14(1)(b)
The appellant submits that the requested information pertains to the health and safety of his children and section 14(1)(b) of the Act therefore applies. In his representations the appellant states that he has “legitimate reason to believe that there are vital records and information regarding the incidents that may assist in determining whether or not the welfare of the aforementioned children are at risk with their custodial guardian/parent”. Section 14(1)(b) reads:
A head shall refuse to disclose personal information to any person other than the individual to whom the information relates except,
in compelling circumstances affecting the health or safety of an individual, if upon disclosure notification thereof is mailed to the last known address of the individual to whom the information relates.
I have carefully considered the contents of the records, the age of the records and the representations on this issue and I find that the appellant has not provided me with sufficient evidence to demonstrate that the circumstances of this appeal qualify as the type of “compelling circumstances affecting the health or safety of his children” that meet the threshold set in sections 14(1)(b). Accordingly, I find that section 14(1)(b) does not apply.
Section 14(1)(d)
The appellant relies upon section 37 of the Child and Family Services Act in support of his position that the requested information should be disclosed. As a result, the appellant appears to raise the possible application of section 14(1)(d) of the Act which reads:
A head shall refuse to disclose personal information to any person other than the individual to whom the information relates except,
under an Act of Ontario or Canada that expressly authorizes the disclosure.
The phrase “under an Act of Ontario or Canada that expressly authorizes the disclosure” in section 14(1)(d) closely mirrors the phrase “expressly authorized by statute” in section 28(2) of the Act, which is the equivalent of section 38(2) of the provincial Act [Order PO-1933]. This office has stated the following with respect to the latter phrase in section 38(2) of the provincial Act:
The phrase “expressly authorized by statute” in subsection 38(2) of the Act requires either that specific types of personal information be expressly described in the statute, or a general reference to the activity be set out in the statute, together with a specific reference to the personal information to be collected in a regulation made under the statute i.e., in a form or in the text of the regulation [Compliance Investigation Report I90-29P].
I have reviewed the Child and Family Services Act (section 37) and cannot find therein a provision expressly authorizing the disclosure of the undisclosed personal information in the records to the appellant. No other section or statute is referenced by the appellant. Therefore, based on the submissions of the appellant, and my review of the records at issue, I find that the exception in section 14(1)(d) does not apply in this case.
Section 14(3)(b)
Section 14(3)(b) reads as follows:
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.
The Police submit that all of the withheld information remaining at issue is personal information that was compiled and is identifiable as part of an investigation into a possible violation of law. As a result they argue that disclosure would result in a presumed unjustified invasion of personal privacy. The appellant submits that disclosing the withheld information would be in the best interests of the children. He also submits that the personal information is relevant to a fair determination of his rights, referring to the factor favouring disclosure at section 14(2)(d) of the Act.
I find that section 14(3)(b) applies in the circumstances of this appeal. I have reviewed the severed portions of the records remaining at issue and I conclude that the personal information severed from the records was compiled and is identifiable as part of an investigation into a possible violation of law, namely the Criminal Code. Whether or not charges are laid does not affect the application of 14(3)(b) [Order PO-1849]. Because this presumption applies, in accordance with the ruling in John Doe cited above, I am precluded from considering the possible application of any of the factors or circumstances under section 14(2). This would include any consideration of the factor in section 14(2)(d) that was referred to by the appellant in his representations.
The presumed unjustified invasion of personal privacy at section 14(3)(b) therefore applies to this information. Section 14(4) does not apply. Accordingly, I conclude that the disclosure of the withheld personal information contained in the severances remaining at issue would constitute an unjustified invasion of personal privacy. As a result, this information is exempt from disclosure under section 38(b).
EXERCISE OF DISCRETION
Where appropriate, institutions have the discretion under the Act to disclose information even if it qualifies for exemption under the Act. Because section 38(b) is a discretionary exemption, I must also review the Police’s exercise of discretion in deciding to deny access to the information they withheld. On appeal, this office may review the institution’s decision in order to determine whether it exercised its discretion and, if so, to determine whether it erred in doing so.
I may find that the Police erred in exercising their discretion where, for example: