ORDER PO-3923

Appeal PA16-654

Ministry of Community Safety and Correctional Services

January 30, 2019

Summary: The Ministry of Community Safety and Correctional Services (the ministry) received a request pursuant to the Freedom of Information and Protection of Privacy Act  (the Act ) for access to a specified occurrence report. The ministry located responsive records and granted partial access withholding some information pursuant to section 14(1) (law enforcement) and 21(1) (personal privacy). In this order, the adjudicator upholds the ministry’s decision with regard to section 21(1). The adjudicator finds that the law enforcement exemption does not apply and orders information withheld under it disclosed.

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”), 14(1)(a), 14(1)(l) and 21(1).

Orders and Investigation Reports Considered: Order MO-2539.

Cases Considered: John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767 (Div.Ct.).

OVERVIEW:

[1]  A request was made to the Ministry of Community Safety and Correctional Services (the ministry) pursuant to the Freedom of Information and Protection of Privacy Act  (the Act ), for access to a specified occurrence report.

[2]  The ministry issued a decision granting partial access to an Ontario Provincial Police (OPP) supplementary occurrence report pertaining to the specified OPP occurrence number. Access to the withheld information initially was denied pursuant to the law enforcement exemptions at sections 14(1)(a), 14(1)(l), 14(2)(a) of the Act and the personal privacy exemptions at sections 21(1)  and 49 (b) of the Act  as well as section 49(a) (discretion to refuse requester’s own information). The ministry also withheld some information on the basis that it was not responsive to the request.

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

[4]  At the outset of mediation, the appellant advised that she believes additional records should exist. Specifically, the appellant advised that she was seeking access to any reports or notes of the attending officers. The mediator conveyed this information to the ministry and the ministry agreed to conduct a search for that information.

[5]  The ministry completed another search and issued a supplemental decision granting partial access to officer notebook entries of two named officers. The ministry again denied access to the withheld information pursuant to the law enforcement exemptions at sections 14(1)(a), 14(1)(l), 14(2)(a) of the Act and the personal privacy exemptions at sections 21(1)  and 49 (b) of the Act  as well as section 49(a) (discretion to refuse requester’s own information). The ministry also withheld certain information as it was deemed non-responsive to the request.

[6]  The appellant subsequently advised the mediator that she wants to pursue access to the supplementary occurrence report and the officer notebook entries. She advised that she does not wish to pursue the non-responsive severances made to the records and does not wish to pursue police codes or information related to patrol zones.

[7]  As mediation did not resolve the dispute, the file was transferred to the adjudication stage of the appeals process, where an adjudicator conducts a written inquiry under the Act . I sought and received representations from the ministry, the appellant and the individuals from the agency noted in the records. Representations were shared in accordance with section 7 of the IPC’s Code of Procedure and Practice Direction 7.

[8]  In its representations, the ministry indicated that it is no longer relying on section 14(2)(a) and also that it was not relying on section 21 with regard to page 1 of the records. In addition, because the appellant’s personal information does not appear in the records, it did not address sections 49(a) or 49(b). As sections 14(2)(a), 49(a) and 49(b) are no longer at issue in this appeal, they will not be discussed in this order.

[9]  In this order, I uphold the ministry’s decision to withhold the personal information in the records under the personal privacy exemption at section 21(1). However, I find that the law enforcement exemptions at sections 14(1)(a) and (l) do not apply in this circumstance and order the ministry to disclose the portions of the records withheld under those sections.

RECORDS:

[10]  The records remaining at issue consist of the supplementary occurrence report (1 page) and officer notebook entries of two named officers (7 pages).

[11]  As the appellant indicated that she is not interested in pursuing non-responsive information in the records, the following is not at issue in this appeal:

• • All of page 2

• • The top portion of the page 3

• • A portion of page 4

• • The remainder of page 5, except for one responsive excerpt at the top of that page

• • The top part of page 7

• • The last half of page 9.

ISSUES:

1. Does the record contain “personal information” as defined in section 2(1) and, if so, to whom does it relate?
2. Does the mandatory exemption at section 21(1) apply to the information at issue?
3. Do the discretionary exemptions at sections 14(1)(a) and 14(1)(l) apply to the information at issue?

DISCUSSION:

Issue A: Does the record contain “personal information” as defined in section 2(1) and, if so, to whom does it relate?

[12]  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;

[13]  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. [1]

[14]  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.

[15]  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. [2]

[16]  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. [3]

[17]  To qualify as personal information, it must be reasonable to expect that an individual may be identified if the information is disclosed. [4]

[18]  The ministry submits that parts of the records contain personal information including the name of an affected third party individual, that individual’s relationship to others, as well as information that was recorded by the police in the course of their duties.

[19]  The appellant provided representations in this appeal. She does not address whether the record contains personal information.

[20]  Two affected parties provided representations in this appeal. Neither consented to the release of their personal information if it exists in the records.

[21]  Based on my review of the records, I find that they contain recorded information about affected third parties that would qualify as personal information under paragraphs (a), (d) and (h) of section 2(1)  the Act . The records do not contain any personal information relating to the appellant.

Issue B: Does the mandatory exemption at section 21(1) apply to the information at issue?

[22]  Where a requester seeks personal information of another individual, section 21(1) prohibits an institution from releasing this information unless one of the exceptions in paragraphs (a) to (f) of section 21(1) applies.

[23]  The section 21(1)(a) to (e) exceptions are relatively straightforward. The section 21(1)(f) exception, allowing disclosure if it would not be an unjustified invasion of personal privacy, is more complex and requires a consideration of additional parts of section 21.

[24]  The information in this appeal does not fit within any of paragraphs (a) to (e) of section 21(1)  of the Act . The ministry submits that the affected parties whose personal information is withheld have not consented to its disclosure. In addition, the affected parties who provided representations did not consent to the disclosure of their personal information.

Sections 21(2) and (3)

[25]  The factors and presumptions at sections 21(2) and (3) help in determining whether disclosure would or would not be an unjustified invasion of privacy under section 21(1)(f). Additionally, if any of paragraphs (a) to (c) of section 21(4) apply, disclosure is not an unjustified invasion of personal privacy. None of the section 21(4) paragraphs are relevant in this appeal.

[26]  In determining whether disclosure of the personal information in the records would be an unjustified invasion of personal privacy under section 21, this office considers and weighs the factors and presumptions in sections 21(2) and 21(3) and balances the interests of the parties. [5]

Section 21(3) presumption

[27]  If any of paragraphs (a) to (h) of section 21(3) apply, disclosure of the information is presumed to be an unjustified invasion of personal privacy under section 21.

[28]  The ministry submits that the presumption at section 21(3) (b) of the Act  applies to exempt the information from disclosure. Section 21(3)(b) states:

A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy where 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;

[29]  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. [6] The presumption can also apply to records created as part of a law enforcement investigation where charges are subsequently withdrawn. [7]

[30]  Section 21(3)(b) does not apply if the records were created after the completion of an investigation into a possible violation of law. [8]

[31]  In its representations, the ministry submits that it withheld information from the records on the basis that to disclose them would presumptively constitute an unjustified invasion of personal privacy of affected third party individuals in accordance with section 21(3)(b). The ministry submits that the presumption at section 21(3)(b) only requires that there be an investigation into a possible violation of law, relying on Order PO-2955. The ministry submits that the withheld personal information in the records relates to records compiled by the OPP and that while no charges resulted, the presumption nevertheless applies because if circumstances had been different, the potential was there for the OPP officers, as members of a police force, to have laid charges.

Finding

[32]  The records consist of the withheld portion of a supplemental occurrence report and the handwritten notes of OPP officers concerning an incident where a specified agency relied on the OPP to attend and preserve the peace while the agency conducted its own investigation.

[33]  From my review of the records, it appears that the OPP officers were not investigating a potential violation of law when they attended the address specified in the records. Instead, the ministry submits that the OPP officers were acting in their duty to preserve the peace. This is evident from the information in the records already disclosed to the appellant.

[34]  However, in their confidential representations, the ministry makes additional submissions about the circumstances surrounding the creation of the records. From my review of these confidential submission and the records, I observe that the records may nonetheless fall within the section 21(3)(b) presumption. However, because of my finding on the application of the section 21(2) factors (below), it is not necessary for me to make a finding on the application of the section 21(3)(b) presumption in the circumstances and I decline to do so.

[35]  I will now consider any factors in section 21(2).

[36]  Section 21(2) lists various factors that may be relevant in determining whether disclosure of personal information would constitute an unjustified invasion of personal privacy. [9] The factors listed at paragraphs 21(2)(a) through (d), if present, generally weigh in favour of disclosure, while the factors listed at paragraphs 21(2)(e) though (i), if present, generally weigh in favour of non-disclosure.

[37]  The list of factors under section 21(2) is not exhaustive. The institution must also consider any circumstances that are relevant, even if they are not listed under section 21(2). [10]

[38]  The ministry submits that the factor at section 21(2)(f) (highly sensitive) applies. In my review of the appellant’s representations, she suggests that the factor at section 21(2)(a) (public scrutiny) is relevant and implicitly suggests that the factor at paragraph(d) (fair determination of rights) may apply.

[39]  The relevant sections of section 21(2) state:

A head, in determining whether disclosure of personal information constitutes an unjustified invasion of personal privacy, shall consider all the relevant circumstances, including whether,

(a) the disclosure is desirable for the purpose of subjecting the activities of the institution to public scrutiny;

(d) the personal information is relevant to a fair determination of rights affecting the person who made the request;

(f) the personal information is highly sensitive;

[40]  I will begin by discussing the factors that, if present, weigh in favour of disclosure.

Section 21(2)(a) (public scrutiny)

[41]  The appellant submits that she would like the police notes pertaining to their visit along with the specified agency indicating that she expects the records will reveal breaking of confidentiality rules as well as other “bad faith” behaviour on the part of the workers from the specified agency.

[42]  The objective of section 21(2) (a) of the Act  is to ensure an appropriate degree of scrutiny of government and its agencies by the public. After reviewing the appellant’s representations along with the withheld portion of the records, I conclude that disclosing the withheld personal information contained in the police notes would not result in greater scrutiny of the OPP or the specified agency. Additionally, I find that the subject matter of the information sought does not suggest a public scrutiny interest.

[43]  Accordingly, in the circumstances, I find that the factor at section 21(2)(a) is not a relevant consideration.

Section 21(2)(d) (fair determination of rights)

[44]  In determining whether disclosure of personal information constitutes an unjustified invasion of personal privacy, section 21(2)(d) requires the ministry to consider whether the personal information is relevant to a fair determination of rights affecting the person who made the request. For section 21(2)(d) to apply, the appellant must establish that:

(1) the right in question is a legal right which is drawn from the concepts of common law or statute law, as opposed to a non-legal right based solely on moral or ethical grounds; and

(2) the right is related to a proceeding which is either existing or contemplated, not one which has already been completed; and

(3) the personal information which the appellant is seeking access to has some bearing on or is significant to the determination of the right in question; and

(4) the personal information is required in order to prepare for the proceeding or to ensure an impartial hearing. [11]

[45]   The appellant submits that a specified individual was charged by the OPP and did not receive full disclosure of the police file as a lot of information had been redacted from the file. In order to establish the factor at section 21(2)(d), the appellant must establish that the right relates to a proceeding which is either existing or contemplated. In the appellant’s representations, she refers to a proceeding which has concluded. Therefore, I find that the right does not relate to a proceeding which is either existing or contemplated and this factor does not apply.

[46]  I will now discuss the factors that weigh in favour of non-disclosure.

Section 21(2)(f) (highly sensitive)

[47]  In its representations, the ministry submits that disclosure of the record would constitute an unjustified invasion of personal privacy and it is therefore entitled to exercise its discretion to withhold the records under section 21(2) (f) of the Act . The ministry refers to prior orders and agrees that in order to meet section 21(2)(f), there must be a reasonable expectation of significant personal distress if the personal information was disclosed.

[48]  The ministry refers to Order P-1618, where it was found that the personal information of individuals who were complainants, witnesses or suspects as part of their contact with the OPP was “highly sensitive” for the purpose of section 21(2)(f). The ministry submits that disclosure of the withheld information in the records could cause significant personal distress, given that the records were created nearly seven years ago. The ministry submits that so long after the incident in question, any affected third party would be distressed to learn that their personal information had been ordered disclosed.

[49]  After a review of the records, I agree with the ministry that this factor applies to the records and that disclosing the personal information would result in significant personal distress to affected third parties. I give this factor significant weight.

Conclusion

[50]  In conclusion, I have found that the personal information at issue is not subject to the presumption in section 21(3)(b); however, I found that the factor at section 21(2)(f) (highly sensitive) applies to the information and this factor weighs strongly in favour of non-disclosure of the information. I have also found that there are no factors in favour of disclosing the information. Accordingly, I find that the withheld portions of the records that contain an affected party’s personal information are exempt from disclosure under section 21(1)  of the Act .

Issue C: Do the discretionary exemptions at section 14(1)(a) and/or 14(1)(l) apply to the information at issue?

[51]  The ministry takes the position that section 14(1)(a) and (l) apply to portions of the records.

[52]  Sections 14(1)(a) and (l) state:

(1) A head may refuse to disclose a record where the disclosure could reasonably be expected to,

(a) interfere with a law enforcement matter;

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

[53]  Generally, the law enforcement exemption must be approached in a sensitive manner, recognizing the difficulty of predicting future events in a law enforcement context. [12]

[54]  Where section 14 uses the words “could reasonably be expected to,” the institution must provide detailed evidence to establish a “reasonable expectation of harm.” Evidence amounting to speculation of possible harm is not sufficient. [13]

[55]  It is also not sufficient for an institution to take the position that the harms under section 14 are self-evident from the record or that the exemption applies simply because of the existence of a continuing law enforcement matter. [14] The institution must provide detailed evidence about the potential for harm. It must demonstrate a risk of harm that is well beyond the merely possible or speculative although it need not prove that disclosure will in fact result in such harm. How much and what kind of evidence is needed will depend on the type of issue and seriousness of the consequences. [15]

[56]  The term “law enforcement” is used in several parts of section 14, and is defined in section 2(1) 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, or

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

[57]  The term “law enforcement” has covered the following situations:

• • a municipality’s investigation into a possible violation of a municipal by-law that could lead to court proceedings. [16]

• • a police investigation into a possible violation of the Criminal Code . [17]

• • a children’s aid society investigation under the Child and Family Services Act which could lead to court proceedings. [18]

• • Fire Marshal fire code inspections under the Fire Protection and Prevention Act, 1997. [19]

Representations

[58]  The ministry submits that it applied section 14(1)(a) and (l) to the records as the OPP is a law enforcement agency, and the records at issue are operational records that were created during OPP law enforcement activities. Moreover, the ministry submits that the specified agency who is referenced in the records is a law enforcement agency relying on Order MO-2539 which it submits held that “the activities of [the specified agency] . . . also meet the definition of ‘law enforcement’.” The ministry submits that this finding is equally applicable in the circumstances of this appeal.

[59]  The ministry submits that it applied the law enforcement exemption in clauses 14(1)(a) and (l) in order to protect the integrity of law enforcement activities and out of concern for the privacy of affected third party individuals. The ministry referred to Ontario (Attorney General) v. Fineberg [20] where the Divisional Court held that the law enforcement exemption must “be approached in a sensitive manner, recognizing the difficulty of predicting future events in a law enforcement context.”

[60]  The ministry submits that if the records protected under sections 14(1)(a) and (l) were disclosed, the following harms could occur:

• • Co-operation between the OPP and a specified agency could be jeopardized out of concern that records such as the ones at issue in this appeal would be disclosed

• • Disclosure of these records could result in members of the public hesitating to assist the OPP and the specified agency with their law enforcement investigations as the public would be concerned that any personal information they provided to the OPP would be subject to disclosure.

[61]  The ministry submits that with regard to the section 14(1)(a) exemption, the Supreme Court of Canada in Ontario (Public Safety and Security) v. Criminal Lawyers Association [21] held that the “main purpose of the exemption is clearly to protect the public interest in effective law enforcement,” and that a “finding that … disclosure may interfere with law enforcement is implicitly a finding that the public interest in law enforcement may trump public and private interests in disclosure.”

[62]  The ministry submits that it applied section 14(1)(l) to the records because they contain personal information related to affected third party individuals who are identified in OPP policing records. The ministry submits that this information is inherently sensitive, and for that reason alone, should not be disclosed (i.e., without the affected third parties’ consent). The ministry submits that it is concerned that disclosure of the records would have the eventual effect of discouraging members of the public from cooperating with the OPP and the specified agency, if the public believes that the confidentiality of the information they provide will not be safeguarded. The ministry further submits this type of outcome could be expected to hamper the ability of the OPP and the specified agency to conduct law enforcement operations, which in turn would either facilitate the commission of crime or hamper its control.

[63]  In the appellant’s representations, in commenting on the law enforcement exemption at section 14(1), she submits that the rules were put in place to protect innocent people from harm and they should be used to alleviate wrong doing when innocent people have been harmed. The appellant submits that the rules should not be used to protect criminal behaviour/work from being exposed. The appellant submits that protecting criminal, abusive behaviour and workers is what ruins the reputation of the OPP in the eyes of the public and it would help the reputation of the OPP to release the withheld information in its entirety. The appellant submits that a specified individual did not receive full disclosure and what he did receive had a lot of information blacked out. The appellant submits that at this time, many years after the incident, confidentially rules no longer apply.

[64]  The appellant submits that she would like the notes pertaining to the police involvement when visiting workers of a specified agency noting that she expects that they will reveal breaking of confidentiality rules as well as other “bad faith” behaviour on the part of workers of the specified agency.

[65]  The appellant included some excerpts from a document used in a Supreme Court of Ontario file involving a specified individual. After a review of that portion of the representations, I concluded that there was nothing relevant to summarize for the purpose of this appeal.

[66]  The appellant submits that as a result of the investigation, a specified individual named in the records has suffered and that access to the police notes pertaining to this investigation would assist in clearing this individual’s name and hopefully help others to not have to endure such treatment.

[67]  One of the two affected parties who provided representations in this appeal noted that there is no current or ongoing investigation by the specified agency.

Analysis and finding

[68]  After a review of the ministry’s representations, I do not agree that the law enforcement exemption is relevant in this appeal. [22]

[69]  The ministry has referenced section 14(1)(a) as applicable to allow it to withhold some of the relevant information. While the ministry relies on Order MO-2539 where Adjudicator Cropley found that a “law enforcement matter” may extend beyond a specific investigation or proceeding, in my review of that order, I find that the circumstances of this appeal are different.

[70]  In Order MO-2539, the records in dispute involved a “protocol” that exists between the Children’s Aid Society and the police. The adjudicator looked at the purpose of the record at issue and the manner in which it was to be used and was satisfied that the protocol was “intended to apply to all ongoing investigations, and that the protection of children and investigation of allegations of abuse qualify as a ‘law enforcement matter’.” The adjudicator found that the police had provided “detailed and convincing” evidence to establish a “reasonable expectation of harm” should the information in the record be disclosed.

[71]  After a review of the information that was withheld under section 14(1)(a) in this appeal, I do not come to the same conclusion as the adjudicator in MO-2539 because the records consist of an occurrence report and police notes regarding an investigation that has concluded, as confirmed in the representations of an affected party employed by the specified agency. In my view, the ministry has not provided detailed evidence that establishes a reasonable expectation that disclosure of the information withheld under section 14(1)(a) could reasonably be expected to result in interference with a law enforcement matter. In my review, I do not see that any of the withheld information in the records was intended to apply to any other ongoing investigation. I therefore find that disclosure of the information would not interfere with a law enforcement matter and section 14(1)(a) does not apply.

[72]  I also do not agree with the ministry that section 14(1)(l) is applicable in this appeal. In its representations, the ministry indicates that it applied section 14(1)(l) to the records because they contain the personal information of affected parties identified in the records. As noted, the ministry must provide detailed evidence in order to establish a reasonable expectation of harm. In my view, the ministry has offered no evidence to suggest that disclosure of the records could be expected to facilitate the commission of an unlawful act or hamper the control of crime other than speculating about possible harm which is not sufficient. Therefore, I find that section 14(1)(l) does not apply to any portion of the withheld information.

ORDER:

1.  I uphold the ministry’s decision with respect to section 21(1)  of the Act .

2.  I do not uphold the ministry’s decision with regard to section 14(1)(a) and (l) of the Act and order it to disclose information withheld under those sections in accordance with the highlighted records enclosed with the ministry’s copy of the order. To be clear, only the highlighted information should be disclosed to the appellant.

3.  I order that the ministry make the disclosure referred to in paragraph 2 of this order, by March 4, 2019 but not before February 27, 2019.

Original signed by:		January 30, 2019
Alec Fadel
Adjudicator