ORDER MO-2366

 

Appeal MA08-172

 

Toronto Police Services Board

NATURE OF THE APPEAL:

 

The requester provided the Toronto Police Services Board (the Police) with a signed access request form that contained certain handwritten notations. Accompanying the request were two letters. On its face, the request does not clearly set out the records sought by the requester, whose first language is not English or French. After a meeting with the requester, the Police decided to treat it as a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for any records in their custody or control that related to the requester.

 

The Police identified responsive records and granted partial access to them. The Police relied on the discretionary exemption at section 38(b) of the Act (personal privacy) with reference to the presumption at section 14(3)(b) (compiled as part of a law enforcement investigation) to deny access to the portion they withheld.

 

The requester (now the appellant) appealed the decision.

 

At mediation, the appellant advised the mediator that he was not interested in the records the Police identified as responsive to the request. As a result, access to those records and the application of the discretionary exemption at section 38(b) is no longer at issue in the appeal. The mediator did discern, however, that the appellant is seeking contact information which relates to his son. After the mediator told the Police about the scope of the clarified request, they issued a supplementary decision letter refusing to confirm or deny the existence of a responsive record under section 14(5) of the Act.

 

Mediation did not resolve the matter and the appeal was moved to the adjudication phase of the process.

 

I commenced the inquiry by sending a Notice of Inquiry setting out the facts and issues in the appeal and inviting representations to the Police, initially. The Police provided representations in response to the Notice. The Police asked that portions of their representations not be shared due to confidentiality concerns. I then sent a Notice of Inquiry, along with the non-confidential representations of the Police, to the appellant. The appellant did not provide representations in response to the Notice.

 

DISCUSSION:

 

REFUSAL TO CONFIRM OR DENY THE EXISTENCE OF A RECORD

 

The Police rely on section 14(5) of the Act as the basis for their decision to refuse to confirm or deny whether any responsive records exist. Section 14(5) reads:

 

A head may refuse to confirm or deny the existence of a record if disclosure of the record would constitute an unjustified invasion of personal privacy. 

 

Section 14(5) gives an institution discretion to refuse to confirm or deny the existence of a record in certain circumstances.

 

A requester in a section 14(5) situation is in a very different position from other requesters who have been denied access under the Act. By invoking section 14(5), the institution is denying the requester the right to know whether a record exists, even when one does not. This section provides institutions with a significant discretionary power that should be exercised only in rare cases [Order P-339].

 

Before an institution may exercise its discretion to invoke section 14(5), it must provide sufficient evidence to establish both of the following requirements:

 

1.         Disclosure of the record (if it exists) would constitute an unjustified invasion of personal privacy; and

 

2.         Disclosure of the fact that the record exists (or does not exist) would in itself convey information to the requester, and the nature of the information conveyed is such that disclosure would constitute an unjustified invasion of personal privacy.

 

The Ontario Court of Appeal has upheld this approach to the interpretation of section 21(5) of the Freedom of Information and Protection of Privacy Act, which is identical to section 14(5) of the Act, stating:

 

The Commissioner’s reading of s. 21(5) requires that in order to exercise his discretion to refuse to confirm or deny the report’s existence the Minister must be able to show that disclosure of its mere existence would itself be an unjustified invasion of personal privacy.

 

[Orders PO-1809, PO-1810, upheld on judicial review in Ontario (Minister of Health and Long-Term Care) v. Ontario (Assistant Information and Privacy Commissioner), [2004] O.J. No. 4813 (C.A.), leave to appeal to S.C.C. dismissed (May 19, 2005), S.C.C. 30802]

 

The effect of this interpretation is that the institution may not invoke section 14(5) where disclosure of the mere existence or non-existence of the record would not itself engage a privacy interest.

 

Part one:  disclosure of the record (if it exists) would constitute an unjustified invasion of personal privacy

 

Definition of personal information

 

Under part one of the section 14(5) test, the institution must demonstrate that disclosure of the record, if it exists, would constitute an unjustified invasion of personal privacy. An unjustified invasion of personal privacy can only result from the disclosure of personal information. Under section 2(1) of the Act, “personal information” is defined, in part, to mean recorded information about an identifiable individual, including 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. Records of the nature requested, if they exist, would reveal that the appellant’s son had been involved with the Police in law enforcement matters. I find that such information, if it exists, would qualify as the personal information of the appellant’s son.

 

Unjustified invasion of personal privacy

 

The factors and presumptions in sections 14(2), (3) and (4) provide guidance in determining whether disclosure would or would not be “an unjustified invasion of privacy” under section 14(5). 

 

If any of paragraphs (a) to (h) of section 14(3) apply, disclosure of the information is presumed to be an unjustified invasion of personal privacy under section 14. Once established, a presumed unjustified invasion of personal privacy under section 14(3) can only be overcome if section 14(4) or the “public interest override” at section 16 applies. [John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767].

 

If no section 14(3) presumption applies, section 14(2) lists various factors that may be relevant in determining whether disclosure of personal information would constitute an unjustified invasion of personal privacy. 

 

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 (section 14(3)(b)).  The Police submit that if records which satisfy the requirements of this section exist, then access would be denied on the basis of this presumption.  I agree and find that disclosure of any such records, if they exist, would constitute a presumed unjustified invasion of personal privacy because they fall within the section 14(3)(b) presumption. Records of this type are not among those listed in section 14(4) and the appellant did not raise the application of the “public interest override” at section 16 of the Act.

 

Furthermore, if the requested records exist, they could also be considered as highly sensitive, because they would reveal whether or not the appellant’s son has had contact with the Police in the context of law enforcement matters, thereby raising section 14(2)(f) as a relevant consideration favouring privacy protection.  The appellant has not submitted any representations, and I find that no factors favouring disclosure have been established.  Section 14(2)(f) weighs in favour of privacy protection and, in my view, disclosure of responsive records, if they exist, would also constitute an unjustified invasion of personal privacy when considering the factors and circumstances in section 14(2).

 

In the result, I find that the Police have satisfied part one of the section 14(5) test.

 

Part two:  disclosure of the fact that the record exists (or does not exist)

 

Under part two of the section 14(5) test, the institution must demonstrate that disclosure of the fact that a record exists (or does not exist) would in itself convey information to the appellant, and the nature of the information conveyed is such that disclosure would constitute an unjustified invasion of personal privacy.

 

I find that disclosure of the fact that a record of the nature requested exists or does not exist would reveal personal information about the appellant’s son; specifically, whether or not he has been involved with the Police in law enforcement matters. In my view, the analysis with respect to the factor in section 14(2)(f) relating to the disclosure of responsive records, if they exist, is equally applicable here.  I find that disclosing the existence or non-existence of responsive records would in itself convey information to the requester, and the nature of the information conveyed is such that disclosure would constitute an unjustified invasion of personal privacy based on the consideration favouring privacy protection in section 14(2)(f), against the absence of any evidence of factors favouring disclosure.

 

Accordingly, I conclude that the Police have established both requirements for section 14(5), subject to any findings I may make below under “exercise of discretion”.

 

Exercise of discretion

 

On the basis of the submissions of the Police, some of which I am unable to reproduce in this order due to their confidential nature, and the circumstances of this appeal, I am satisfied that the Police properly considered all of the relevant circumstances and exercised their discretion appropriately.

 

ORDER:

 

I uphold the decision of the Police.

 

 

 

 

 

 

 

Original signed by:                                                                                  November 25, 2008                       

Steven Faughnan