Access to Information Orders
Decision Information
• Occurrence summary and the contents of two public complaint files. Refusal to confirm or deny the existence of a report pertaining to an investigation.
• Section 2(1) (definition of “personal information”) – Occurrence summary contains personal information. A report pertaining to any investigation of circumstances relating to an identified individual, if it exists, would contain personal information.
• Section 14(5) (refuse to confirm or deny) – upheld.
• Section 38(a)/8(2)(a) (law enforcement) – not upheld.
• Section 38(b) (personal privacy) – upheld.
• Section 52(3)3 (labour relations and employment records) – upheld.
• Police’s decision upheld.
Decision Content
NATURE OF THE APPEAL:
The Greater Sudbury Police Services Board (the Police) received a multi-part request under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for access to the following:
1. A copy of a report prepared by a police investigator (as well as the name of his partner) pertaining to a complaint made by an identified individual;
2. A copy of the report and the name of the investigator, pertaining to any investigation of certain circumstances relating to an identified individual;
3. A complete copy of the contents of two specified Police Professional Standards Bureau (PSB) complaint files.
The Police issued a decision letter in which they:
1. Granted partial access to a one-page Occurrence Summary that the Police identified as responsive to item one of the request and disclosed the names of the officers that attended in relation to the matter. They relied on the discretionary exemptions at section 38(a) (discretion to refuse requester’s own information), in conjunction with section 8(2)(a) (law enforcement report); and 38(b) (personal privacy) with particular reference to the presumption at section 14(3)(b) (investigation into possible violation of law) to deny access to the portion they withheld;
2. Refused to confirm or deny the existence of records responsive to item two of the request;
3. Claimed that the exclusionary provision in section 52(3) of the Act applied to exclude the requested complaint files from the scope of the Act.
The requester (now the appellant) appealed the decision.
Mediation did not resolve the appeal and it was moved to the adjudication stage of the appeal process. I sent a Notice of Inquiry and a Supplementary Notice of Inquiry setting out the facts and issues in the appeal to the Police, initially. The Police provided representations in response. I then sent a Notice of Inquiry, along with the complete representations of the Police, to the appellant. The appellant provided representations in response.
RECORDS:
Remaining at issue in this appeal are the withheld portions of a one-page Occurrence Summary and the contents of two PSB files, including three compact disks. Also at issue is the Police’s refusal to conform or deny the existence of records responsive to item two of the request.
LABOUR RELATIONS AND EMPLOYMENT RECORDS
The Police take the position that sections 52(3)1 and 3 of the Act operate to remove the contents of the two PSB files (item three of the request), from the scope of the Act.
I will first address the application of section 52(3)3 of the Act, which 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:
Meetings, consultations, discussions or communications about labour relations or employment-related matters in which the institution has an interest.
Section 52(4) provides exceptions to the section 52(3) exclusions, none of which apply to the records at issue here.
Section 52(3) is record-specific and fact-specific. If this section applies to the records at issue in this appeal, these records are excluded from the scope of the Act.
Section 52(3)3: matters in which the institution has an interest
Introduction
For section 52(3)3 to apply, the Police must establish that:
1. the records were collected, prepared, maintained or used by an institution or on its behalf;
- this collection, preparation, maintenance or usage was in relation to meetings, consultations, discussions or communications; and
- these meetings, consultations, discussions or communications are about labour relations or employment-related matters in which the institution has an interest.
Part 1: collected, prepared, maintained or used
The Police submit that the contents of the two PSB files were collected, prepared, maintained or used by the Police.
I find that the contents of the two files were collected, maintained or used by the PSB in order to conduct an investigation into the appellant’s complaint made under the Police Services Act (PSA) about the conduct of a named police officer. The two files also include copies of correspondence from the Ontario Civilian Commission on Police Services (OCCPS) sent by OCCPS to the Police in connection to its review of the decision of the PSB Bureau Commander’s decision to not deal with the appellant’s complaint.
In short, I am satisfied that the contents of the two PSB files were collected, prepared, maintained or used by an institution. Consequently, the Police have met Part 1 of the section 52(3)3 test.
Part 2: meetings, consultations, discussions or communications
It is evident from my review of the contents of the two files and the nature of the records that meetings, consultations, discussions or communications of various sorts took place involving both the Police and OCCPS with respect to the records. Consequently, I find that the collection, preparation, maintenance and use of the contents of the two files by the Police were in relation to meetings, consultations, discussions or communications.
As a result, I find that the second part of the test under section 52(3)3 has been met with respect to the contents of those files.
Part 3: labour relations or employment-related matters in which the institution has an interest
The meeting, discussions, consultations and communications that took place involved potential disciplinary matters involving an identified police officer. This office has found that disciplinary matters involving police officers are “employment-related matters”. [See in this regard Orders M-835, PO-2499 and PO-2426]
In Order PO-2658 Adjudicator Colin Bhattacharjee had the opportunity to discuss the impact of Ontario (Ministry of Correctional Services) v. Goodis [2008] O.J. No. 289 (Goodis) on sections 65(6) 1 and 3 of the Freedom of Information and Protection of Privacy Act, the provincial equivalent of sections 52(3)1 and 3 of the Act. He wrote:
… the Divisional Court found that section 65(6) does not exclude all records concerning the actions or inactions of an employee simply because this conduct may give rise to a civil action in which the Crown may be held vicariously liable for torts caused by its employees [Goodis]. In particular, the Court stated the following with respect to the meaning of sections 65(6)1 and 3:
Subclause 1 of s. 65(6) deals with records collected, prepared, maintained or used by the institution in proceedings or anticipated proceedings “relating to labour relations or to the employment of a person by the institution”. The proceedings to which the paragraph appears to refer are proceedings related to employment or labour relations per se - that is, to litigation relating to terms and conditions of employment, such as disciplinary action against an employee or grievance proceedings. In other words, it excludes records relating to matters in which the institution has an interest as an employer. It does not exclude records where the Ministry is sued by a third party in relation to actions taken by government employees.
Moreover, the words of subclause 3 of s. 65(6) make it clear that the records collected, prepared, maintained or used by the Ministry in relation to meetings, consultations or communications are excluded only if those meetings, consultations, discussions or communications are about labour relations or “employment-related” matters in which the institution has an interest. Employment-related matters are separate and distinct from matters related to employees’ actions.
This raises the question as to whether records concerning disciplinary matters involving police officers are “employment-related matters” for the purposes of section 65(6)3 of the Act, because such records have been created as a result of complaints filed by a third party with respect to the actions of those officers. In its decision, the Divisional Court provided some guidance on this issue. In particular, it commented on the Court of Appeal’s decision in Ontario (Solicitor General) v. Ontario (Assistant Information and Privacy Commissioner) (2001), 55 O.R. (3d) 355, in which one of the records at issue was a copy of a public complaint file of the Police Complaints Commission:
… there was no dispute in that case that the file documenting the investigation of the complaint was employment-related - not surprisingly because of the potential for disciplinary action against a police officer. However, the case does not stand for the proposition that all records pertaining to employee conduct are excluded from the Act, even if they are in files pertaining to civil litigation or complaints brought by a third party. Whether or not a particular record is “employment-related” will turn on an examination of the particular document. (Emphasis added.)
I have carefully examined the records at issue in the appeal before me, which document the PSB’s investigation of the complaints filed against the two OPP officers and OCCPS’s review of the two decisions issued by the PSB Bureau Commander. In my view, these records are “employment-related,” because of the potential for disciplinary action against the two officers. I find, therefore, that the meetings, discussions, consultations and communications that took place were about “employment-related matters.”
I agree with Adjudicator Bhattacharjee’s analysis and adopt it for the purposes of this appeal. I find that it is equally applicable to the analysis in the third part of the section 52(3)3 test. Having examined the copies of the records in the two PSB files, I conclude that those copies relate to employment, because of the potential for disciplinary action arising out of the appellant’s complaint against the named police officer. I find, therefore, that the meetings, discussions, consultations or communications were about “employment related matters”.
The remaining question is whether these meetings, discussions, consultations and communications were about employment-related matters “in which the institution has an interest.” The phrase “in which the institution has an interest” means more than a “mere curiosity or concern”, and refers to matters involving the institution’s own workforce [Ontario (Solicitor General), cited above].
In my view, the Police have an interest in the employment-related matters in the contents of the two files that extends beyond a “mere curiosity or concern.” As the employer of the named police officer, the Police clearly have more than a trifling interest in the PSB Bureau Commander’s decisions with respect to the complaint filed against the named police officer and the outcome of the subsequent review conducted by OCCPS.
I am satisfied that the Police have met Part 3 of the section 52(3)3 test.
Given that the Police have met each aspect of the three-part section 52(3)3 test, I find that the copies of the records contained in the two PSB files are excluded from the scope of the Act under that section. As a result, it is not necessary for me to also consider whether these records are also excluded under section 52(3)1.
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].
I find that the one-page Occurrence Summary contains the personal information of the appellant. This information qualifies as his personal information because it represents recorded information about him that includes his name, along with other personal information about him (paragraph (h)).
The one-page Occurrence Summary also contains the personal information of another identifiable individual. This information qualifies as their personal information because it contains their address (paragraph (d)) and their name, along with other personal information about them (paragraph (h)).
DISCRETION TO REFUSE REQUESTER’S OWN INFORMATION
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 reads:
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]
LAW ENFORCEMENT