ORDER MO-2311

 

Appeal MA07-120

 

Toronto Police Services Board

BACKGROUND:

 

The Toronto Police Services Board (the Police) received three requests under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for information relating to the same workplace construction accident.  The requests were filed separately by a lawyer on behalf of two of his clients who were both involved in the accident. Both clients provided the Police with authorization for the lawyer to act on their behalf with respect to the disclosure of any of their personal information which might be responsive to their requests. One of the individuals was injured in the accident. The other was a witness.

 

The three requests were subsequently appealed. Appeal Number MA07-135 deals with information relating to the injured individual. Appeal Numbers MA07-102 and MA07-120 deal with information related to the witness. This order deals specifically with Appeal Number MA07-120 which relates to information sought by the witness. Although it involves the same records as those at issue in Appeal Number MA07-135, it relates to a different client, the individual who was a witness in the accident.

 

NATURE OF THE APPEAL:

 

The Police received a request under Act for access to information relating to a specific workplace construction accident. Specifically, the requester sought access to the following information:

 

We are enclosing our cheque in the amount of $5.00 to obtain a copy of the incident report [stated number].  Please provide us with a copy of your entire file, including any witness reports, any construction reports and any other reports.

 

The Police located a Sudden Death Report and issued a decision letter advising that access was denied to it pursuant to section 38(a) (discretion to refuse a requester’s own information), in conjunction with sections 8(1)(a) and (b) (law enforcement) and section 38(b) (personal privacy) taking into account the presumptions at sections 14(3)(a) and (b). The Police also advised that the records contain the information of a deceased person and raised the possible application of section 54(a) (administration of an estate) of the Act.

 

The requester, now the appellant, appealed the Police’s decision.

 

During mediation, the appellant confirmed that section 54(a) of the Act is not at issue in this appeal. However, the appellant maintained that other responsive records such as witness statements should exist, in addition to the located Sudden Death Report.

 

The Police agreed to conduct a further search for additional records.  As a result of the further search, the Police located several officers’ memorandum notebooks which contain statements provided to the Police by the appellant’s client and other witnesses.

 

The Police issued a revised decision advising that access was denied to the recently located records, which included the appellant’s client’s statement, pursuant to section 38(a), in conjunction with sections 8(1)(a), (b) and (l) and section 38(b) taking into account the presumptions at sections 14(3)(a) and (b).

 

Lastly, the Police stated in their revised decision letter that portions of the officer’s memorandum books were deemed non-responsive to the request.

 

In response, the appellant advised that he wished to pursue access to all of the Police records pertaining to the accident, and, in particular, to the statement provided by his client.  The appellant takes the position that the “absurd result” principle applies to his client’s statement.

 

The appellant also confirmed that those portions of the memorandum book notes which are claimed to be non-responsive to the accident, and the I/CAD Event Details Report which is the subject of a related appeal, Appeal Number MA07-102, are not at issue in this appeal.

 

No further mediation was possible and the file was transferred to the adjudication stage of the appeal process.

 

I began my inquiry into this appeal by sending a Notice of Inquiry to the Police. The Police responded with representations. I then sent a copy of the Notice of Inquiry to the appellant along with a copy of the Police’s non-confidential representations. The appellant did not submit representations.

 

RECORDS:

 

The following records are at issue:

 

•      Sudden Death Report – pages 1 to 10

•      Memorandum Book Notes, Police Officer #1 – pages 11 to 14

•      Memorandum Book Notes, Police Officer #2 – pages 15 to 24

•      Memorandum Book Notes, Police Officer #3 – pages 25 to 27

•      Memorandum Book Notes, Police Officer #4 – pages 28 to 34

•      Memorandum Book Notes, Police Officer #5 – pages 35 to 37

•      Memorandum Book Notes, Police Officer #6 – page 38

•      Memorandum Book Notes, Police Officer #7 – pages 39 to 44

•      Memorandum Book Notes, Police Officer #8 – pages 45 to 48

•      Memorandum Book Notes, Police Officer #9 – pages 49 to 50

•      Memorandum Book Notes, Police Officer #10 – pages 51 to 52

•      Memorandum Book Notes, Police Officer #11 – pages 53 to 62

•      Memorandum Book Notes, Police Officer #12 – pages 63 to 64

•      Memorandum Book Notes, Police Officer #13 – pages 65 to 66

 

 

DISCUSSION:

 

PERSONAL INFORMATION

 

Under the Act, different exemptions may apply depending on whether or not a record contains the personal information of the requester [see Order M-352].  Where records contain the requester’s own information, access to the records is addressed under Part II of the Act and the exemptions at section 38 may apply.  Where the records contain the personal information belonging to individuals other than the appellant, access to the records is addressed under Part I of the Act and the exemptions found at sections 6 to 15 may apply.

 

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 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]. 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.)].

 

To qualify as personal information, the information must be about the individual in a personal capacity.  As a general rule, information associated with an individual in a professional, official or business capacity will not be considered to be “about” the individual [Orders P-257, P-427, P-1412, P-1621, R-980015, MO-1550-F, PO-2225].  However, even if information relates to an individual in a professional, official or business capacity, it may still qualify as personal information if the information reveals something of a personal nature about the individual [Orders P-1409, R-980015, PO-2225].

 

Having reviewed the records at issue, I find that all of them contain the personal information of identifiable individuals other than the appellant’s client that meet the definition of “personal information” in section 2(1) of the Act. This information includes their addresses and telephone numbers (paragraph (d)), their age and family or marital status (paragraph (a)), as well as 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. 

 

I find that the Memorandum Book Notes of Police Officer #11 is the only record at issue that also contains the personal information of the appellant’s client, including his address and telephone number (paragraph (d)), his age (paragraph (a)), his personal views and opinions (paragraph (e)) and his name, along with other personal information relating to him (paragraph (h)). This record includes his statement made to the Police and also contains the personal information of other identifiable individuals.

 

As noted above, if a record does not contain the personal information of the appellant, but contains either the personal information of individuals other than the appellant or no personal information at all, a decision regarding access must be made in accordance with the exemptions in Part 1 of the Act. However, in circumstances where a record contains both the personal information of the appellant and another individual, the request falls under Part II of the Act and the decision regarding access must be made in accordance with the exemptions in that part.

 

Accordingly, access to the record that contains the personal information of the appellant’s client, the Memorandum Notes of Police Officer #11 must be determined under Part II of the Act in accordance with the exemptions at section 38(a) and (b).

 

Access to the records that contain no personal information belonging to the appellant’s client, which is the case with all of the remaining records, must be determined under Part I of the Act, in accordance with the exemptions at sections 8(1)(a), (b) and (l) and section 14(1).

 

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

 

Section 38(b) of the Act is the relevant personal privacy exemption under Part II of the Act.  It provides:

 

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.

 

The personal privacy exemptions under the Act are mandatory at section 14(1) under Part I and discretionary at section 38(b) under Part II.  Put another way, where a record contains the personal information of both the appellant and another individual, section 38(b) in Part II of the Act permits an institution to disclose information that it could not disclose if the exemptions at section 14(1) in  Part I were applied [Order MO-1757]. 

 

Section 38(b) introduces a balancing principle, which involves weighing the requester’s right of access to his own personal information against the other individual’s right to protection of their privacy. The institution retains the discretion to deny the appellant access to information if it determines that the disclosure of the information would constitute and unjustified invasion of another individual’s personal privacy. On appeal, I must be satisfied that disclosure of the information would constitute an unjustified invasion of another individual’s personal privacy [Order M-1146].

 

In order for disclosure to “constitute an unjustified invasion of another individual’s personal privacy” under either the discretionary exemption at section 38(b) or the mandatory exemption at section 14(1), the information in question must contain the personal information of an individual or individuals other than the person requesting it.

 

The factors and presumptions in sections 14(2) to (4) provide guidance in determining whether the “unjustified invasion of personal privacy” threshold is met. 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. In this case the Police rely on sections 14(3)(a) and (b).

 

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].

 

I will now review whether the information in the Memorandum Notes of Police Officer #11 (which contain the personal information of the appellant as well as that of other individuals) qualifies for exemption under the discretionary exemption at section 38(b) and whether the information in the remaining records at issue (which contain the personal information of other individuals but not that of the appellant) qualifies for exemption under the mandatory exemption at section 14(1).

 

Section 14(3)(b): identifiable as part of an investigation into a possible violation of law

 

The Police submit that the presumption at section 14(3)(b) applies to all of the information at issue in this appeal. Section 14(3)(b) provides:

 

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 they have conducted their initial investigation into the occurrence but that now, the Ontario Ministry of Labour is in the process of conducting its own investigation. The Police submit:

 

Should the Ministry of Labour’s investigation discover that the occurrence was the result of criminal intent rather than an offence under the Occupational Health and Safety Act, R.S.O. 1990, it would then be incumbent upon the Toronto Police Service to pursue the criminal charges concerned.

 

The appellant makes no specific submissions on the application of the presumption at section 14(3)(b) or whether the exemptions at either section 38(b) or 14(1) apply

 

Analysis and Findings

 

Based on careful review of the personal information at issue, I find that the nature and content of the records demonstrate that they were compiled and are identifiable as part of a police investigation into a workplace accident that resulted in a sudden death. As a result, I find that the records were compiled by the Police and are identifiable as part of their investigation, the purpose of which is, in part, to determine whether there has been a possible violation of law under either the Criminal Code  or the Occupational Health and Safety Act. Accordingly, I find that that the presumption at section 14(3)(b) applies.

 

In my view, section 14(4) does not apply to any of the records. Also, the appellant did not raise the possible application of the public interest override at section 16 of the Act.  Accordingly, I find that subject to the possible application of the absurd result principle and my review of the Police’s exercise of discretion, I conclude that the discretionary exemption at section 38(b) applies to the Memorandum Notes of Police Officer #11.

 

As for the remaining records that do not contain the personal information of the appellant but rather, only that of other individuals, I find that, subject to the possible application of the absurd result principle, the mandatory exemption at section 14(1) applies to exempt them from disclosure.  

 

As I have found that the presumption at section 14(3)(b) applies to all of the information at issue it is not necessary for me to determine whether the presumption at section 14(3)(a) applies.

 

ABSURD RESULT

 

Whether or not the factors or circumstances in section 14(2) or the presumptions in section 14(3) apply, where the requester originally supplied the information, or the requester is otherwise aware of it, the information may be found not exempt under either section 38(b) or section 14(1), because to find otherwise would be absurd and inconsistent with the purpose of the exemption [Orders M-444, MO-1323].

 

The absurd result principle has been applied where, for example:

 

• the requester sought access to his or her own witness statement [Orders M-444, M-451]

 

• the requester was present when the information was provided to the institution [Orders M-444, P-1414]

 

• the information is clearly within the requester’s knowledge [Orders MO-1196, PO-1679, MO-1755]

 

My review of the records at issue indicates that the appellant’s client supplied a statement to Police Officer #11 and that this statement appears in that officer’s notes on pages 53 to 56 of the records. To be clear, the statement begins at the bottom of page 53 and ends at the bottom of page 56 with the appellant’s client’s signature, date and time. In my view, it is clear that this information was supplied by the appellant’s client and is therefore, clearly within his knowledge.

 

Accordingly, I cannot agree with the Police’s position that disclosure of the above-referenced statement to the appellant would result in an unjustified invasion of another individual’s personal privacy under section 38(b), whether or not any of the presumptions in section 14(3) apply.  Rather, I find that to decline to grant access to this information, under the circumstances, would lead to an absurd result [Order MO-1196, PO-1679, MO-1755].

 

I am not satisfied that the balance of the withheld information was supplied by the appellant’s client or that he is otherwise aware of it, so as to lead to an absurd result if it was withheld.

 

I have found that most of the information at issue qualifies for exemption under section 14(1) or 38(b). However, I have found that the absurd result principle applies to the appellant’s client’s witness statement which appears on pages 53 to 56 of the Memorandum Notes of Police Officer #11. As a result, I will now continue my analysis to determine whether, the discretionary exemption at section 38(a), in conjunction with sections 8(1)(a), (b) or (l), applies to exempt that portion of the record from disclosure.

 

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

 

Section 36(1) gives individuals a general right of access to their own personal information held by an institution. Section 38(a) provides a number of exemptions from this right.  It provides:

 

A head may refuse to disclose to the individual to whom the information relates personal information,

 

if section 6, 7, 8, 8.1, 8.2, 9, 10, 11, 12, 13 or 15 would apply to the disclosure of that personal information. [emphasis added]

 

The Police take the position that the information is exempt from disclosure under section 38(a) because the information falls within the exemptions at sections 8(1)(a), (b), and (l) of the Act. Those sections provide:

 

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

 

(a)                interfere with a law enforcement matter;

 

(b)               interfere with an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result;

 

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

 

 The term “law enforcement” is used in several parts of section 8, and is defined in section 2(1) of the Act as follows:

 

“law enforcement” means,

 

(a)                policing,

 

(b)               investigations or inspections that lead or could lead to proceedings in a court or tribunal if a penalty or sanction could be imposed in those proceedings, and

 

(c)                the conduct of proceedings referred to in clause (b).

 

Generally, the law enforcement exemption must be approached in a sensitive manner, recognizing the difficulty of predicting future events in a law enforcement context [Ontario (Attorney General) v. Fineberg (1994), 19 O.R. (3d) 197 (Div. Ct.)].

 

For the purposes of each of sections 8(1)(a), (b) and (l), the Police must provide “detailed and convincing” evidence to establish a “reasonable expectation of harm.”  Evidence amounting to speculation of possible harm is not sufficient [Order PO-2037, upheld on judicial review in Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner), [2003] O.J. No. 2182 (Div. Ct.), Ontario (Workers’ Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464 (C.A.)].

 

It is not sufficient for an institution to take the position that the harms under section 8 are self-evident from the record or that a continuing law enforcement matter constitutes a per se fulfillment of the requirements of the exemption [Order PO-2040; Ontario (Attorney General) v. Fineberg].

 

Section 8(1)(a):  law enforcement matter

 

Under section 8(1)(a) the law enforcement matter in question must be a specific, ongoing matter. The exemption does not apply where the matter is completed, or where the alleged interference is with “potential” law enforcement matters [Orders PO-2085 and MO-1578].

 

The institution holding the records need not be the institution conducting the law enforcement matter for the exemption to apply [Order PO-2085].

 

The Police submit that an investigation into this construction accident is currently being conducted by the Ministry of Labour and that disclosure of the information at issue prior to the conclusion of the investigation could jeopardize the investigation itself, as well as the prosecution of any charges that are laid in this matter.

 

In my view, the Police have not provided me with sufficiently detailed evidence to support the application of the section 8(1)(a) exemption.  While they have submitted disclosure of the appellant’s client’s own witness statement could reasonably be expected to jeopardize an ongoing proceeding, I am aware that the Ministry of Labour investigation referred to is now complete. The Ministry itself advised me in their representations in a related appeal, Appeal Number PA07-124, of this fact.

 

As a result, I am not satisfied that the Police have established that disclosing the appellant’s client’s witness statement could reasonably be expected to interfere with an ongoing law enforcement matter.  I find, therefore, that that information does not fit within the ambit of the exemption at section 8(1)(a).

 

Section 8(1)(b):  law enforcement investigation

 

The law enforcement investigation in question must be a specific, ongoing investigation.  The exemption does not apply where the investigation is completed, or where the alleged interference is with “potential” law enforcement investigations [Order PO-2085].

 

As with section 8(1)(a), the institution holding the records need not be the institution conducting the law enforcement investigation for the exemption at section 8(1)(b) to apply [Order PO-2085].

 

Again, the Police’s representations submit that disclosure of the information at issue could reasonably be expected to interfere with an active, ongoing investigation into the workplace accident by the Ministry of Labour.

 

As discussed above, the Ministry of Labour’s investigation has concluded and I have not been provided with any evidence that there are any other ongoing proceedings with respect to this matter. As a result, I am not satisfied that releasing the appellant’s client’s witness statement could reasonably be expected to interfere with an ongoing law enforcement investigation.  I find, therefore, that the information does not fit within the ambit of the exemption at section 8(1)(b).

 

Section 8(1)(l):  commission of an unlawful act or hamper the control of crime

 

The Police’s representations on this issue focus primarily on the Toronto Police Service “10” codes from police officer’s memorandum books.  As mentioned several times above, the only information that remains at issue is the appellant’s client’s statement found on pages 53 to 56 of Police Officer #11’s memorandum notes. I have carefully reviewed that information and find that there are no “10” codes that appear in this record. Additionally, having considered the nature and content of the statement, I do not accept that disclosure could reasonable be expected to facilitate the commission of an unlawful act or hamper the control of crime.

 

Therefore, I find that section 8(1)(l) does not apply to exempt the appellant’s client’s witness statement, found on pages 53 to 56 of Police Officer #11’s memorandum notes, from disclosure.

 

EXERCISE OF DISCRETION

 

Where appropriate, institutions have the discretion under the Act to disclose information even if it qualifies for exemption under the Act. 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.

 

Because section 38(b) is a discretionary exemption and I have found that the Police have properly applied it to exempt the Memorandum Notes of Police Officer #11 from disclosure, with the exception of the appellant’s client’s witness statement, I must review the Police’s exercise of discretion in deciding to deny access to the remainder of that record.

 

I may find that the Police erred in exercising their discretion where, for example:

 

• they do so in bad faith or for an improper purpose

 

• they take into account irrelevant considerations

 

• they fail to take into account relevant considerations

 

In either case this office may send the matter back to the Police for an exercise of discretion based on proper considerations [Order MO-1573]. 

 

As the only record for which I have found that a discretionary exemption applies is the remainder of the Memorandum Notes of Police Officer #11, my discussion on the Police’s exercise of discretion is restricted to the portions of that record that I have not ordered disclosed, pursuant to my discussion of the absurd result principle above.

 

The Police list several factors that they considered when exercising their discretion not to release the information for which section 38(b) was claimed. Generally, the Police state that since the collection of the personal information of the individuals other than the requester was made as a result of the police investigation of a workplace construction accident, the balance between the right of access and the protection of privacy must weigh in favour of protecting the privacy of individuals. Additionally, the Police submit that due to the sensitive nature of recorded information held by a law enforcement institution they are of the view that they carry a greater responsibility in safeguarding the privacy interests of individuals whose information has been collected in the course of a law enforcement matter.

 

I have reviewed the remaining information that they have decided not to disclose in the Memorandum Notes of Police Officer #11 pursuant to section 38(b) and that I have found to be exempt under that section. In the circumstances of this appeal, I conclude that the Police’s exercise of discretion to withhold the information that I have not ordered disclosed was appropriate, given the circumstances and nature of the information.

 

ORDER:

 

1.         I uphold the decision of the Police to deny access to pages 11 to 52 and 57 to 66 of the records at issue, in their entirety, as well as the portions of pages 53 and 56 which do not represent the witness statement given by the appellant.

 

2.         I order the Police to disclose to the appellant the portions of pages 53 to 56 which represent the statement given by the appellant by July 4, 2008 but not before June 30, 2008. For greater certainty, I have enclosed a copy of pages 53 to 56 where the information that is to be disclosed has been highlighted.

 

3.         In order to verify compliance with the terms of this order, I reserve the right to require the Police to provide me with a copy of the records as disclosed to the appellant, upon request.

 

 

 

 

 

Original signed by:                                                                        May 29, 2008                                        

Catherine Corban