Access to Information Orders
Decision Information
• Request for records relating to a specified, numbered occurrence report
• Section 2(1) definition of “personal information” - records contain the personal information of the appellant and other identifiable individuals
• Section 38(a)/section 8(1)(l) (law enforcement) - upheld
• Section 38(b) - personal privacy - upheld
• Section 17 – adequacy of search upheld, in part
• Section 23(2) – police’s decision to deny opportunity to view originals upheld
• Police’s decision upheld in part.
Decision Content
NATURE OF THE APPEAL:
The Toronto Police Services Board (the Police) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for access to all notes of a named detective from August 2007 to June 2008 related to events described in a specific, numbered occurrence report.
The Police located responsive records and denied access to them on the basis that, pursuant to the exclusionary provisions in section 52(2)(3) of the Act, the information in the responsive records falls outside the scope the Act.
The appellant appealed that decision to this office and appeal MA09-349 was opened. That appeal was closed by Order MO-2504, in which Adjudicator Hale determined that the exclusionary provisions in section 52(3) did not apply to the records, and ordered the Police to provide the appellant with a decision letter respecting access to all of the responsive records.
As a result of Order MO-2504, the Police issued a revised decision to the appellant. In that decision, the Police indicated that access to the records was granted in part. With respect to the records or portions of records to which access was not granted, the Police relied on the exemption in section 38(a) (discretion to deny requester’s own information) in conjunction with section 8(1)(l) (law enforcement), as well as the exemptions in sections 14(1) and 38(b) (personal privacy) with reference to the presumption in section 14(3)(b). In addition, some portions of the records were identified as non-responsive.
The appellant appealed the Police’s revised decision, and this appeal was opened.
During mediation, the appellant advised that he was not appealing the decision that certain portions of the records are non-responsive and, as a result, this information is not at issue in this appeal. However, the appellant confirmed that he was appealing the decision on three points: 1) he is seeking access to the portions of the records withheld by the Police, 2) he wishes to view the original notebook entry for February 14, 2008, and 3) he believes that additional records exist.
With respect to the appellant’s interest in viewing the original February 14, 2008 notebook entry for the named detective, the appellant indicated that he wished to view the original to compare it to the copy he received, as he had concerns about the actions of the Police. During mediation, the Police provided the appellant with a second copy of the notebook entry that they had re-photocopied to make the background more legible. The appellant maintained that he wished to view the original record.
With respect to the issue of whether additional records exist, the appellant maintained that additional notebook entries should exist for the named detective between November 2007 and June 2008. In its decision letter, the Police stated:
You clarified in your representation that “I am not seeking the [entire investigation report] and definitely not records regarding the conduct of [the named detective] that was completed by the Professional Standards Unit (PRS)”. You further clarified, “the records in requested [sic] in my appeal pertain to notes taken by [the named detective] of the Toronto Police Service in relation to his investigation of a criminal complaint …”
The appellant maintained that additional records responsive to his request exist. During mediation, the Freedom of Information Coordinator for the Police (the coordinator) reviewed the original notebooks of the named detective, and located two additional entries in the notebook that were not previously located. These additional entries were provided to the appellant; however, the appellant maintains that additional responsive records exist.
Mediation did not resolve these issues, and this appeal was transferred to the inquiry stage of the process. I sent a Notice of Inquiry to the Police, initially, and the Police provided representations in response. I then sent the Notice of Inquiry, along with a copy of the representations of the Police, to the appellant, who also provided representations to me. I then shared one portion of the appellant’s representations with the Police, and invited the Police to respond to one issue by way of reply representations, which they did.
RECORDS:
The records at issue consist of the severed portions of the named detective’s notebook entries that were withheld on the basis of the identified exemptions (portions of pages 1, 7, 8, 13, 14, 16 and 17).
The record which the appellant seeks to view the original of is a notebook entry for February 14, 2008 (the responsive portions of pages 20 and 21).
DISCUSSION:
PRELIMINARY ISSUE: REQUEST TO VIEW ORIGINALS
As indicated above, the appellant seeks to view the original notebook entry for an identified date.
Section 37(3) of the Act reads:
If access to personal information is to be given, the head shall ensure that the personal information is provided to the individual in a comprehensible form and in a manner that indicates the general conditions under which the personal information is stored and used.
Sections 23(1) and (2) of the Act specifically address issues regarding copies of the record and access to original records. These sections read:
Copy of record
(1) Subject to subsection (2), a person who is given access to a record or a part of a record under this Act shall be given a copy of the record or part unless it would not be reasonably practicable to reproduce it by reason of its length or nature, in which case the person shall be given an opportunity to examine the record or part.
Access to original record
(2) If a person requests the opportunity to examine a record or part and it is reasonably practicable to give the person that opportunity, the head shall allow the person to examine the record or part.
Section 23(2) indicates an institution may decline to accept the request to examine the original record if it would not be reasonably practicable to comply with it. Some examples of why it might not be reasonably practicable to comply are:
• if a record is very large;
• if the reproduction of a record may be unduly burdensome on the institution; or
• if only part of the record is subject to disclosure and it is not feasible to allow inspection without disclosing the protected parts of the record as well.
Section 23(2) is a mandatory provision, subject only to the requirement of reasonable practicability. In other words, unless an institution has determined that it is not reasonably practicable to give the requester the opportunity to examine an original record, the head must do so, upon request [Order PO-1679].
As a result, the issue I must determine is whether it is reasonably practicable to permit the appellant to view the original record, which is the responsive portion of the detective’s notes for February 14, 2008.
The Police take the position that it is not reasonably practicable to permit the appellant to view the original notebook entries. They refer to the fact that the appellant has been provided with “multiple copies” of the notebook entries, and also that, during mediation, the Mediator with this office assigned to this file attended Police headquarters and “physically held and viewed the memobooks at issue,” and provided confirmation and explanation to the appellant. The Police state further that each page of the February 14, 2008 entry responsive to the appellant’s request also contains information unrelated to the appellant, the disclosure of which would be an unjustified invasion of the privacy of the individuals referred to in those portions of the pages. In addition, the Police state:
Both pages relating to February 14, 2008 entries had information removed in the beginning and the end of the entry as non-responsive - relating to other situations and individuals. The appellant cannot physically handle and view these entries without having direct access to these portions of unrelated entries, which contain personal information unrelated to the appellant. In light of the fact that several experienced employees of both this institution and your office have viewed the responsive notes and concur that he has received the complete recorded notes of [the named detective] for the two pages of entries on February 14th, the only information on the pages outstanding are firmly protected under the Act as personal information to which he is not entitled.
The appellant’s representations on this issue focus on why he wants access to the originals. He refers to his concern that these records were not identified earlier in the appeal, and questions the actions of the coordinator. He also refers to a matter that was addressed in the mediation stage of this appeal regarding the quality of a copy of the record he had received. In addition, the appellant states that he would like to know the occurrence numbers of the entries prior to and following the item relating to him, and he states: “I wish to examine the condition of the notebooks to ensure that they are valid police notebooks.” Lastly, the appellant states that it would not be difficult for the coordinator to simply cover the portions of the pages that the appellant is not entitled to view.
The issue I must address is whether it is reasonably practicable to permit the appellant to view the original record (the actual notebooks of the named detective) for the identified entry. The requested notebook entry at issue consists of portions of two pages of the detective’s notes. Each of these pages includes information which has been disclosed to the appellant, and information which the appellant is not entitled to (notwithstanding his interest in obtaining some of this information). In my view, given that the record at issue is a police officer’s notebook, and given that each of the requested pages contains information which the appellant is not entitled to, I find that it is not feasible to allow inspection of the notebook in the circumstances of this appeal. In my view, it is not reasonably practicable to allow inspection of the disclosed parts of the record without disclosing the protected parts of the record as well.
PERSONAL INFORMATION
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 refer to paragraphs (c) and (d) of the definition, and take the position that the withheld portions of the records contain the personal information of the appellant, as well as other identifiable individuals. They also indicate that only very small portions of the records were withheld.
Following my review of the records, I find that all of the records remaining at issue contain the personal information of the appellant, as they include information relating to an investigation involving him, 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)).
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 small portions of pages 7, 13, 14 and 16 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 this severed information, which consists of police 10-codes. 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 appellant’s position on the application of these exemptions to the 10-codes relates primarily to the application of the absurd result principle, which I address below.
A number of previous orders have found that police codes qualify for exemption under section 8(1)(l), because of the reasonable expectation of harm which may result from their release (for example, Orders M-393, M-757, M-781, MO-1428, PO-1665, PO-1777, PO-1877, PO-2209, and PO-2339). In the circumstances of this appeal, I am satisfied that the information that the Police have severed from the records on the basis of section 8(1)(l) could reasonably be expected to facilitate the commission of an unlawful act or hamper the control of crime.
Therefore, I find that section 38(a), in conjunction with section 8(1)(l), applies to the police codes in the records. Specifically, the police codes severed from pages 7 (one 10-code), 13 (one 10-code), 14 (one 10-code) and 16 (two 10-codes) qualify for exemption under section 8(1)(l) and, as a result, are exempt under section 38(a) of the Act, subject to my finding on the Police’s exercise of discretion.
Because the only remaining withheld portions of pages 7 and 13 were the police code information, I will not review the possible application of section 38(b) to these pages.
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, 8, 14, 16 and 17 is presumed to constitute an unjustified invasion of the privacy of individuals other than the appellant under the presumption in section 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:
All responsive records were compiled and maintained due to an ongoing investigation involving the appellant.
The Police also refer to previous orders (M-198, MO-1853) in support of their position that section 14(3)(b) applies in these circumstances.
The appellants’ representations focus on the possible application of the absurd result principle, which I address below.
Findings