ORDER PO-3712

Appeal PA15-37

Ministry of Community Safety and Correctional Services

March 24, 2017

Summary: The ministry received a request under the Act for access to records relating to a specific OPP investigation in which the requester was involved. The ministry granted partial access to the responsive records denying access to some of them, in whole or in part, pursuant to the discretionary privacy exemptions, specifically, section 49(a) (discretion to refuse a requester’s own information), read in conjunction with sections 14(1)(a) and (l) (law enforcement) and 19 (solicitor-client privilege) and section 49(b) (personal privacy) of the Act. The ministry also denied access to portions of some records on the basis that the information was not responsive to the request. In this order, the adjudicator upholds the ministry’s decision to withhold the information at issue and dismisses the appeal.

Statutes Considered: Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. F.31 , as amended, sections 2(1) (definition of “personal information”), 19, 21(2)(f), 21(3)(b), 49(a) and 49(b).

OVERVIEW:

[1]  The Ministry of Community Safety and Correctional Services (the ministry) received a request under the Freedom of Information and Protection of Privacy Act  (the Act ) for access to records relating to a specific Ontario Provincial Police (OPP) investigation in which the requester was involved.

[2]  The ministry located approximately 80 pages of records responsive to the request and granted partial access to them. The ministry denied access to portions of the records in accordance with sections 49(a) (discretion to refuse a requester’s own information), read in conjunction with the law enforcement exemptions at section 14(1)(a), (l) and 14(2)(a), and the solicitor-client privilege exemption at section 19. It also withheld portions of the records in accordance with section 49(b) (invasion of privacy), with consideration given to the factor at section 21(2)(f) (highly sensitive) and the presumption against disclosure at section 21(3)(b) (investigation into a possible violation of law). The ministry also withheld some portions of the records on the basis that the are not responsive to the request.

[3]  The requester, now the appellant, appealed the ministry’s decision.

[4]  During mediation, the appellant provided the mediator with a copy of the court document stating that he has sole custody of his daughter. The mediator forwarded a copy of the document to the ministry and asked if the fact that he was awarded sole custody of his daughter would result in the disclosure of further information. The ministry advised that despite the fact that the appellant has sole custody of his daughter it was not prepared to disclose any further information.

[5]  As a mediated resolution could not be reached, the appellant requested that the file proceed to the adjudication stage of the process for an adjudicator to conduct an inquiry. I began my inquiry by sending a Notice of Inquiry setting out the facts and issues on appeal, to the ministry, initially.

[6]  I also sent a copy of the Notice of Inquiry to four affected parties mentioned in the records and/or who provided statements to the OPP during the course of the investigation. None of the affected parties consented to the disclosure of their own personal information.

[7]  The ministry provided representations. In its representations, it advised that it does not dispute the fact that the appellant has lawful custody of his daughter and, in accordance with section 66(c) he has a right to records relating to her. As a result, the ministry issued a supplementary decision letter to the appellant granting him access to additional information.

[8]  Also in its representations the ministry advised that it was no longer relying on section 49(a), read in conjunction with the law enforcement exemption at section 14(2)(a). Accordingly, section 49(a), read with section 14(2)(a), is no longer at issue in this appeal. Section 49(a), read with sections 14(1)(a) and (l), however, does remain at issue.

[9]  I then sent the Notice of Inquiry, which was revised to reflect the changes resulting from the ministry’s submissions, to the appellant, seeking representations. I also provided the appellant with a copy of the non-confidential portions of the ministry’s representations in accordance with the principles set out in this office’s Practice Direction 7. The appellant chose not to submit representations.

[10]  In this order, I uphold the ministry’s decision not to disclose to the appellant the records and portions of records the remain at issue and dismiss the appeal. Specifically, I reach the following findings:

• portions of the records at issue are not responsive to the appellant’s request;
• all of the records contain the personal information of the appellant and some of them also contain the personal information of other identifiable individuals;
• the discretionary personal privacy exemption at section 49(b) applies to the information for which it has been claimed;
• the discretionary exemption at section 49(a), read in conjunction with section 19 applies to the information for which it has been claimed; and,
• the ministry’s exercise of discretion was reasonable.

RECORDS:

[11]  There are approximately 80 pages of responsive records which consist of police documents relating to an investigation. They include occurrence summaries, general occurrence reports, supplementary occurrence reports and synopses of audio/video statements.

ISSUES:

1. Are portions of the records not responsive to the request?
2. Do the records contain “personal information” as defined in section 2(1) and, if so, to whom does it relate?
3. Does the discretionary personal privacy exemption at section 49(b) apply to the information at issue?
4. Does the discretionary personal privacy exemption at section 49(a), read in conjunction with the solicitor-client privilege exemption at section 19 apply to the information at issue?
5. Does the discretionary personal privacy exemption at section 49(a), read in conjunction with the law enforcement exemptions at sections 14(1)(a) and (l) apply to the information at issue?
6. Did the ministry exercise its discretion under section 49(a) or (b)? If so, should this office uphold its exercise of discretion?

DISCUSSION:

A:  Are portions of the records not responsive to the request?

[12]  The ministry has identified small portions of a number of the records at issue as being not responsive to the request.

[13]  To be considered responsive to the request, records must “reasonably relate” to the request. ^[1] It has previously been established that institutions should adopt a liberal interpretation of a request, in order to best serve the purpose and spirit of the Act . Generally, ambiguity in the request should be resolved in the requester’s favour. ^[2]

[14]  I have reviewed the records and have considered the severed portions that the ministry claims are not responsive to the appellant’s request. I am satisfied that these portions of the records are not responsive to the request. This information is either internal OPP administrative record-keeping information or relates to other OPP matters that do not relate to the appellant or the matters identified in his request. Consequently, I find that the information severed as non-responsive by the ministry is, in fact, not responsive to the request and I uphold the ministry’s decision to withhold it

B:  Do the records contain “personal information” as defined in section 2(1) and, if so, to whom does it relate?

[15]  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 if 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 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;

[16]  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. ^[3]

[17]  Sections 2(3) and (4) also relate to the definition of personal information.  These sections state:

(3) Personal information does not include the name, title, contact information or designation of an individual that identifies the individual in a business, professional or official capacity.

(4) For greater certainty, subsection (3) applies even if an individual carries out business, professional or official responsibilities from their dwelling and the contact information for the individual relates to that dwelling.

[18]  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. ^[4] 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. ^[5]

[19]  To qualify as personal information, it must be reasonable to expect that an individual may be identified if the information is disclosed. ^[6]

Representations

[20]  The ministry claims that all of the records contain personal information within the meaning of the definition in section 2(1)  of the Act . The ministry submits that the personal information belongs to a number of affected individuals involved in the OPP investigation and includes their names, addresses, telephone numbers, dates of birth, their opinions about one or more other individuals and other information gathered by the OPP in connection with their law enforcement investigation. The ministry submits that this type of highly sensitive personal information is consistent with what OPP typically gather in the course of conducting an investigation into a possible violation of law.

[21]  The ministry submits that due to the nature of the investigation it is likely that the appellant and the affected parties know of each other and if the personal information were disclosed the individuals would likely be identifiable by the appellant.

Analysis and finding

[22]  From my review of the records, I accept that they contain recorded information about both the appellant and other individuals (including the affected parties) within the meaning of the definition of personal information in section 2(1)  of the Act . Specifically, I find that all of the records contain the appellant’s personal information, including his name, where it appears with other personal information relating to him (paragraph (h)), as well as his age and family status (paragraph (a)), his address and telephone number (paragraph (d)).

[23]  With respect to the other identifiable individuals, including the affected parties, whose information is contained in the records, I find that the records contain their names, together with other personal information about them (paragraph (h)), including their ages and family status (paragraph (a)), their addresses and telephone numbers (paragraph (d)), and their personal opinions or views (paragraph (e)).

[24]  I acknowledge that some of the information provided by affected parties relates to them in a professional capacity. However, I accept that, given the nature of that specific information it either reveals something of a personal nature about those individuals or is so intertwined with the personal information of other identifiable individuals not acting in a professional capacity, that it cannot be severed. This finding is in keeping with the general rule, noted above, that information associated with an individual in a professional, official or business capacity is generally not considered to be “about” the individual unless the information reveals something of a personal nature about the individual or is so intertwined with the personal information of other identifiable individuals that it cannot be severed.

[25]  I note that most of the appellant’s personal information has been disclosed to him and the remaining portions contain either personal information solely relating to the affected parties or are their views or opinions about the appellant which are so intertwined with the personal information of other identifiable individuals that it cannot be severed. I also note that as a result of their supplemental decision letter in which the ministry applied section 66(c), it has also disclosed portions of the personal information contained in the records that belong solely to the appellant’s daughter who is in his custody.

C.  Does the discretionary personal privacy exemption at section 49(b) apply to the information at issue?

[26]  Under the Act, different exemptions may apply depending on whether a record at issue contains or does not contain the personal information of the requester. ^[7] In the circumstances of this appeal, as the investigation to which the request relates involves the appellant, all of the records contain his own personal information. Accordingly, access to the records is addressed under Part III of the Act and the discretionary exemptions at section 49 may apply.

[27]  Section 47(1) gives individuals a general right of access to their own personal information held by an institution. Section 49 provides a number of exemptions from this right. Under section 49(b), where a record contains personal information of both the requester and another individual, and disclosure of the information would constitute an “unjustified invasion” of the other individual’s personal privacy, the institution may refuse to disclose that information to the requester. Since the section 49(b) exemption is discretionary, the institution may also decide to disclose the information to the requester. ^[8]

[28]  The ministry claims that section 49(b) applies to exempt from disclosure the majority of the records that are at issue in this appeal. ^[9] Sections 21(1) to (4) provide guidance in determining whether the unjustified invasion of personal privacy threshold under either section 21(1)(f) or 49(b) is met:

• If the information falls within any of paragraphs (a) to (e) of section 21(1), disclosure is not an unjustified invasion of personal privacy and the information is not exempt under section 21(1) or section 49(b);
• Section 21(2) lists “relevant circumstances” or factors that must be considered;
• Section 21(3) lists circumstances in which the disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy; and
• Section 21(4) lists circumstances in which the disclosure of personal information does not constitute an unjustified invasion of personal privacy, despite section 21(3).

[29]  For records claimed to be exempt under section 49(b) (i.e., records that contain the requester’s personal information), this office will consider, and weigh, the factors and presumptions in sections 21(2) and (3) and balance the interests of the parties in determining whether the disclosure of the personal information in the records would be an unjustified invasion of personal privacy. ^[10]

Representations, analysis and findings

[30]  The ministry submits that the records are exempt under section 49(b), relying on the presumption against disclosure for information relating to an investigation into a possible violation of law at section 21(3)(b), and the factor weighing against disclosure that the information is highly sensitive at section 21(2)(f). The ministry submits none of the other factors at section 21(2), none of the other presumptions at section 21(3), and none of the exceptions set out in section 21(4) apply in the circumstances of this appeal.

[31]  With respect to the possible application of the presumption at section 21(3)(b), the ministry submits that the disclosure of the information that has been withheld is presumed to constitute an unjustified invasion of the personal privacy of individuals other than the appellant as the information was compiled as is identifiable as part of an investigation into a possible violation of law.” The ministry submits that the records relate to a complaint made by an affected individual alleging that an offence under the Criminal Code of Canada  (the Criminal Code ) might have been committed. The ministry submits that the complaint led to an OPP investigation into whether a contravention of the Criminal Code  had occurred. The ministry submits that although charges were not laid, had the investigation revealed different evidence, charges could have been laid by the OPP and therefore, the records were compiled as part of an investigation of a possible violation of law as required by section 21(3)(b).

[32]  Previous orders have established that even if no criminal proceedings were commenced against any individuals, section 21(3)(b) may still apply. The presumption only requires that there be an investigation into a possible violation of law. ^[11] The presumption can also apply to records created as part of a law enforcement investigation where charges are subsequently withdrawn. ^[12]

[33]  In the circumstances, I accept that it is clear that the information contained in the responsive records were compiled and are identifiable as part of an investigation into a possible violation of law, namely an offence under the Criminal Code . Therefore, I find that the presumption against disclosure at section 21(3)(b) is relevant to the determination of the current appeal.

[34]  The ministry also submits that the factor at section 21(2)(f) should be considered as the information can be described as “highly sensitive.” The ministry submits that this office has previously held that “the personal information of individuals who were ‘complainant’s witnesses or suspects’ as part of their contact with the OPP was ‘highly sensitive’ for the purpose of section 21(2)(f)” [emphasis in original]. The ministry submits that this same reasoning is applicable to the records at issue in this appeal given that they relate to a law enforcement investigation involving affected individuals who have not consented to the disclosure of their own personal information.

[35]  To be considered highly sensitive, there must be a reasonable expectation of significant personal distress if the information is disclosed. ^[13] Having considered the general subject matter of the records and the substance of the specific information that has been withheld, I accept that its disclosure could reasonably be expected to result in the significant personal distress of the individuals to whom it relates if the information were disclosed. This is supported by the fact that none of the affected parties who were contacted consented to the disclosure of their personal information. The investigation to which the information relates is one of an extremely sensitive nature. While it did not lead to charges being laid, I find that it is reasonable to conclude that the disclosure of the personal information of the identifiable individuals who were involved or contacted during its course could reasonably be expected to cause significant personal distress to those individuals. As a result, I find that the factor weighing against the disclosure of the information at section 21(2)(f) applies with considerable weight in the circumstances of this appeal.

[36]  As indicated above, for records claimed to be exempt under section 49(b) I must consider, and weigh, the factors and presumptions in sections 21(2) and (3) and balance the interests of the parties in determining whether the disclosure of the personal information in the records would be an unjustified invasion of personal privacy. ^[14] In the circumstances of this appeal, I find that section 49(b) applies to the records for which it has been claimed.

[37]  I have found that all of the records for which section 49(b) has been claimed were compiled as part of an investigation into a possible violation of law and are therefore subject to the presumption against disclosure at section 21(3)(b). I have also found that the factor weighing against disclosure at section 21(2)(f) applies as the information at issue can be described as “highly sensitive.” I have reviewed the other presumptions set out in section 21(3) and the other factors set out in section 21(2) and have no evidence before me to suggest that any of those factors, in particular those weighing in favour of disclosure of this information, apply. As a result, I find that the disclosure of the information that the ministry has severed from the records under section 49(b) would amount to an unjustified invasion of the personal privacy of the individual to whom this information relates. Therefore, I find that the exemption at section 49(b) applies to the records, subject to my discussion of the ministry’s exercise of discretion below.

D.  Does the discretionary personal privacy exemption at section 49(a), read in conjunction with the solicitor-client privilege exemption at section 19 apply to the information at issue?

[38]  As previously mentioned, section 47(1) gives individuals a general right of access to their own personal information held by an institution. Section 49 provides a number of exemptions from this right. Section 49(a) states:

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

where section 12, 13, 14, 14.1, 14.2, 15, 16, 17, 18, 19, 20 or 22 would apply to the disclosure of that personal information. [emphasis added]

[39]  Section 49 (a) of the Act  recognizes the special nature of requests for one’s own personal information and the desire of the legislature to give institutions the power to grant requesters access to their personal information. ^[15]

[40]  Where access is denied under section 49(a), the institution must demonstrate that, in exercising its discretion, it considered whether a record should be released to the requester because the record contains his or her personal information.

[41]  In this appeal, the ministry also relies on section 49(a), read in conjunction with the solicitor-client privilege exemption at section 19  of the Act  to withhold portions of pages 7 and 32 from disclosure.

Solicitor-client privilege

[42]  Sections 19  of the Act  states:

A head may refuse to disclose a record,

(a) that is subject to solicitor-client privilege;

(b) that was prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation, or

(c) that was prepared by or for counsel employed or retained by an educational institution or a hospital for use in giving legal advice or in contemplation of or for use in litigation.

[43]  Section 19 contains two branches. Branch 1 is based on the common law and is set out in section 19(a).  Branch 2, in the context of the ministry, is a statutory privilege and is set out in sections 19(b). The ministry must establish that one or the other (or both) branches apply.

Branch 1: common law privilege

[44]  At common law, solicitor-client privilege encompasses two types of privilege: (i) solicitor-client communication privilege; and (ii) litigation privilege. In the circumstances of this appeal, the ministry submits that the information is exempt under solicitor-client communication privilege.

Solicitor-client communication privilege

[45]  Solicitor-client communication privilege protects direct communications of a confidential nature between a solicitor and client, or their agents or employees, made for the purpose of obtaining or giving professional legal advice. ^[16] The rationale for this privilege is to ensure that a client may freely confide in his or her lawyer on a legal matter. ^[17] The privilege covers not only the document containing the legal advice, or the request for advice, but information passed between the solicitor and client aimed at keeping both informed so that advice can be sought and given. ^[18] The privilege may also apply to the legal advisor’s working papers directly related to the seeking, formulating or giving legal advice. ^[19]

[46]  Confidentiality is an essential component of the privilege. Therefore, the institution must demonstrate that the communication was made in confidence, either expressly or by implication. ^[20]

Branch 2: statutory privileges

[47]  Branch 2 is a statutory privilege that applies where the records were prepared by or for Crown counsel or counsel employed or retained by an educational institution or hospital “for use in giving legal advice or in contemplation of or for use in litigation.” The statutory exemption and common law privileges, although not identical, exist for similar reasons.

Representations

[48]  The ministry claims that page 7, as well as page 32, contain information that is subject to solicitor-client communication privilege, and therefore is exempt under section 19. It submits that the information in these pages “reveal[s] advice from a Crown Attorney that was sought and received from an OPP investigator, as part of his investigation.” [21] The ministry submits that prior orders of this office have held that records containing confidential communications between the police and Crown Attorneys are protected by solicitor-client privilege and that this applies to the information at issue on pages 7 and 32. The ministry also submits that solicitor-client privilege has not been waived as the information for which it claims section 19 has not been disclosed outside of the ministry.

Analysis and finding

[49]  On my review of pages 7 and 32, I accept the ministry’s claim that they reveal information that is subject to both the common law and statutory solicitor-client communication privilege. The records reveal consultations and discussions between the police and a Crown Attorney with respect to the investigation that are, in my view, clearly legal advice that is either being sought from or given by counsel. I find that this information falls within the “continuum of communications” between a lawyer and client and is subject to the solicitor-client communication privilege component of section 19. Accordingly, subject to my review of the ministry’s exercise of discretion, I accept that pages 7 and 32 qualify for exemption under section 49(a), read in conjunction with section 19  of the Act .

E.  Does the discretionary personal privacy exemption at section 49(a), read in conjunction with the law enforcement exemptions at sections 14(1)(a) or (l) apply to the information at issue?

[50]  In this case, the ministry relies on section 49(a), read in conjunction with the law enforcement exemptions at sections 14(1)(a) and (l), to withhold portions of a number of the records at issue. However, all of the records that the ministry has claimed are exempt, in whole or in part, under section 49(a), read in conjunction with sections 14(1)(a) and/or (l), were also claimed by the ministry to be subject to section 49(b). Given that I have found that section 49(b) applies to all of the records for which it has been claimed, it is not necessary for me to determine whether section 49(a), read in conjunction with sections 14(1)(a) and/or (l) applies to those same records.

F.  Did the ministry exercise its discretion under section 49(a) or (b)? If so, should this office uphold its exercise of discretion?

[51]  The exemptions at sections 49(a) and (b) are discretionary. They permit an institution to disclose information despite the fact that it could withhold it.  An institution must exercise its discretion. On appeal, the Commissioner may determine whether the institution failed to do so.

[52]  In addition, the Commissioner may find that the institution erred in exercising its discretion where, for example,

• it exercises its discretion in bad faith or for an improper purpose
• it takes into account irrelevant considerations
• it fails to take into account relevant considerations.

[53]  In either case this office may send the matter back to the institution for an exercise of discretion based on proper consideration. ^[22] This office may not, however, substitute its own discretion for that of the institution. ^[23]

Representations

[54]  The ministry submits that it exercised its discretion in not disclosing the records or portions of records that it severed pursuant to the discretionary exemption at sections 49(a) and (b) in good faith and having taken into consideration all relevant factors, including, but not limited to, the purposes of the Act .

[55]  The ministry submits that exercising its discretion not to disclose the records and portions of the records that are subject to this appeal it considered the following:

• the public policy interest in protecting the privacy of personal information belonging to affected individuals contained in law enforcement investigation records, on the basis of their inherent sensitivity;
• the affected individuals have either not been notified or have not consented to the disclosure of their personal information, and,
• the harm that would be caused to OPP’s law enforcement mandate, based on the contention that the public would be less likely to cooperate were the OPP to disclose personal information or information that originated from a complaint.

Analysis and finding

[56]  Considering the circumstances before me and the specific information contained in the records at issue, I am satisfied that the ministry exercised its discretion in good faith and for a proper purpose taking into account all relevant factors. The ministry disclosed to the appellant some of the responsive records in their entirety and others in part. Additionally, as previously noted, the ministry has disclosed to the appellant the majority of his own personal information, as well as that of his daughter who is in his custody. I note that the portions that the ministry has exercised is discretion to withhold is either information that I accept is subject to section 49(b), specifically, personal information solely relating to other identifiable individuals and their views or opinions about the appellant which are so intertwined with the personal information of others that it cannot be severed, or information that I have found is clearly subject to solicitor-client privilege. In the circumstances, I accept that the ministry did not err in exercising its discretion to deny the appellant access to the information that I have found subject to the discretionary personal privacy exemptions in section 49(a) and (b).

ORDER:

I uphold the ministry’s decision and dismiss the appeal.

Original Signed By:		March 24, 2017
Catherine Corban
Adjudicator