ORDER MO-4228

Appeal MA20-00366

York Regional Police Services Board

July 25, 2022

Summary: The York Regional Police Services Board (the police) received a request under the Municipal Freedom of Information and Protection of Privacy Act  for access to an occurrence report and officers’ notes relating to an incident in which the appellant was involved. The police granted partial access to responsive records, but withheld personal information of affected parties under the discretionary personal privacy exemption in section 38(b). The appellant appealed the police’s decision, and during mediation of the appeal, made a request to the police for correction to his personal information in the partially disclosed records. The police denied the correction request. In this order, the adjudicator finds that disclosure of the withheld information would constitute an unjustified invasion of the affected parties’ personal privacy, and that the appellant has not established the requirements for correction to his personal information. The adjudicator upholds the police’s decision and dismisses the appeal.

Statutes Considered: Municipal Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. M.56 , as amended, sections 2(1)  (definition of “personal information”), 14(3)(b), 36(2) and 38(b).

OVERVIEW:

[1] The York Regional Police Services Board (the police) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for access to records relating to an incident in which the appellant was involved. Specifically, the request was for access to:

Copy of Records for the case: [specified occurrence number] which would be Officer’s records and related.

[2] The police located responsive records and issued a decision granting partial access to the appellant. The police withheld some information as exempt under the personal privacy exemption in section 38(b), with reference to the presumption against disclosure in section 14(3)(b) (investigation into possible violation of law).

[3] The appellant appealed the police’s decision to the Information and Privacy Commissioner of Ontario (the IPC). A mediator was appointed to explore resolution with the parties.

[4] During mediation, the appellant stated that he does not seek access to the names, contact information, or biographical or other identifying information of other individuals identified in the report, but rather access to the statements made by individuals whom the police questioned about the incident (witness statements).

[5] The appellant also took the position that the information contained in the records that were disclosed to him is inaccurate. He submitted a correction request together with a statement of disagreement to the police under section 36(2) of the Act . The police issued a supplementary decision denying the correction request. The police denied the correction request on the grounds that the information the appellant sought to correct relates to third parties’ opinions or views of what occurred, and the investigative conclusions of the involved officers. Instead, the police stated that the appellant’s statement of disagreement would be attached to the occurrence report.

[6] The appellant was not satisfied with the police’s response to his correction request. The correction request was added as an issue to the appeal.

[7] With no further mediation possible, the appeal was moved to the adjudication stage of the appeal process, where an adjudicator may conduct an inquiry. I decided to conduct an inquiry during which the police and the appellant submitted representations that were shared between them. [1]

[8] In this order, I find that the records contain the personal information of the appellant and of other identifiable individuals. I find that disclosure of the withheld information about the other individuals would constitute an unjustified invasion of those individuals’ personal privacy. I find that the police properly exercised their discretion in withholding this information under section 38(b), and I uphold the police’s decision. I also uphold the police’s denial of the appellant’s correction request.

RECORDS:

[9] The records at issue are a police occurrence report and the handwritten notes of two polices constables (Constable A and Constable B). At issue is the information withheld from the occurrence report and the officers’ handwritten notes/memorandum book entries.

ISSUES:

1. Do the records contain “personal information” as defined in section 2(1) and, if so, whose personal information is it?
2. Would disclosure of the personal information constitute an unjustified invasion of personal privacy under section 38(b)?
3. Should the police’s exercise of discretion under section 38(b) be upheld?
4. Should the records be corrected under section 36(2) of the Act ?

DISCUSSION:

Background provided in the parties’ representations

[10] The records arise from the police’s visit to the appellant’s condominium building following an altercation and complaint about the use of a common area. Police responded to a call of an altercation between the appellant and another individual. The records at issue relate to this altercation.

[11] The appellant submits that “this case should not be reduced to minor issues…,” and his representations focus on broader circumstances not contemplated by the records or the access request. The appellant comments on matters involving the condominium’s board of directors, the conduct of individual directors and the circumstances of their appointments, and on matters affecting the condominium corporation and property management.

[12] Although I have reviewed the appellant’s entire representations, photographs and video recordings of congregants in the common elements, I have only summarized those portions of the representations that are relevant to the issues before me in this order.

Issue A: Do the records contain “personal information” as defined in section 2(1) and, if so, whose personal information is it?

[13] The police withheld some information in the records they disclosed to the appellant on the basis that the information was exempt from disclosure under the personal privacy exemption in section 38(b) of the Act . In order to decide which sections of the Act  may apply to a specific case, the IPC must first decide whether the record contains “personal information,” and if so, to whom this personal information relates.

[14] Section 2(1) of the Act  defines “personal information” as “recorded information about an identifiable individual.” Recorded information is information recorded in any format, including paper and electronic records. [2]

[15] Information is “about” the individual when it refers to them in their personal capacity, meaning that it reveals something of a personal nature about them. Generally, information about an individual in their professional, official, or business capacity is not considered to be “about” the individual if it does not reveal something of a personal nature about them. [3]

[16] Information is about an “identifiable individual” if it is reasonable to expect that an individual can be identified from the information either by itself or if combined with other information. [4]

[17] Section 2(1) of the Act  gives a list of examples of personal information. The examples relevant to this appeal are the following:

“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,

…

(d) the address, telephone number, fingerprints or blood type of the individual,

…

(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.

Representations

[18] The police submit that the records contain identifying information belonging to the appellant and other individuals (affected parties), such as their dates of birth, sex, addresses, telephone numbers, ethnicities, and statements containing their personal opinions or views. The police submit that this information qualifies as personal information as defined in paragraphs (a), (d) and (e) of section 2(1). The police say that this information is about these individuals in a personal capacity. The police also submit that witnesses whose information was collected would be identifiable if their views and opinions collected by the police were to be disclosed.

[19] The appellant’s representations do not specifically comment on whether the records contain personal information, or to whom it may belong. His representations set out reasons he believes he should have access to “third party opinions,” which I discuss in greater detail below, under Issue B.

Analysis and findings

[20] I have reviewed the records and find that they contain the appellant’s personal information as well as the personal information of other identifiable individuals.

[21] The records contain information about identifiable individuals that includes their names, dates of birth, sex, race, home addresses, telephone numbers, and their views or opinions, including their personal views about the events under investigation and about the conduct of other individuals allegedly involved in the incident that prompted the call for police assistance. Collectively, I find that this is information that falls within the definition of “personal information” in paragraphs (a), (d), (g) and (h) of section 2(1) of the Act .

[22] Because I have found that the records contain both the appellant’s personal information and that of other identifiable individuals, I must consider the application of the discretionary personal privacy exemption in section 38(b) to the personal information at issue that the police have not disclosed.

Issue B: Would disclosure of the personal information constitute an unjustified invasion of personal privacy under section 38(b)?

[23] 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 some exemptions from this right.

[24] Under the section 38(b) exemption, if a record contains the personal information of both the requester and another individual, the institution may refuse to disclose the other individual’s personal information to the requester if disclosing that information would be an “unjustified invasion” of the other individual’s personal privacy.

[25] The section 38(b) exemption is discretionary. This means that the institution can decide to disclose another individual’s personal information to a requester even if doing so would result in an unjustified invasion of the other individual’s personal privacy. [5]

[26] If disclosing another individual’s personal information would not be an unjustified invasion of personal privacy, then the information is not exempt under section 38(b).

[27] Also, the requester’s own personal information, standing alone, cannot be exempt under section 38(b) as its disclosure could not, by definition, be an unjustified invasion of another individual’s personal privacy. [6]

[28] Sections 14(1) to (4) provide guidance in deciding whether disclosure would be an unjustified invasion of the other individual’s personal privacy. If any of the section 14(1)(a) to (e) exceptions apply, disclosure would not be an unjustified invasion of personal privacy and the information is not exempt from disclosure under section 38(b). In the circumstances, none of the section 14(1) exceptions apply, and are not addressed further in this order.

[29] Sections 14(2), (3) and (4) also help in deciding whether disclosure would or would not be an unjustified invasion of personal privacy under section 38(b). Section 14(4) lists situations where disclosure would not be an unjustified invasion of personal privacy, in which case it is not necessary to decide if any of the factors or presumptions in sections 14(2) or (3) apply. The parties do not rely on section 14(4), and I find that it does not apply in this appeal.

[30] In deciding whether the disclosure of personal information in the records would be an unjustified invasion of personal privacy under section 38(b), the IPC will consider and weigh the factors and presumptions in section 14(2) and (3) and balance the interests of the parties. [7]

Representations

The police’s representations

[31] The police submit that the information at issue was collected during an investigation into an assault complaint. The police submit that disclosure of the information is presumed to constitute an unjustified invasion of the personal privacy of the affected parties pursuant to the presumption against disclosure in section 14(3)(b) of the Act , because the information was collected as part of an investigation into a possible violation of law. They say that they disclosed all of the appellant’s personal information to him and informed him of the conclusions of their investigation based on the information they obtained.

[32] The police submit that no factors in section 14(2) apply to weigh in favour of disclosure.

The appellant’s representations

[33] The appellant submits that he requires access to the allegations made against him to prove that they are “factually incorrect.” He submits that he was injured and that this matter should not be left “in the vapor of understatement and false testimony.”

[34] According to the appellant, the withheld information at issue – namely witness statements – should be disclosed because it was on those statements that the appellant says the police based their opinion that the appellant was unreliable and ended their investigation. The appellant challenges the adequacy and completeness of the police’s investigation; he submits that he was physically harmed and seeks an “honest and professional re-investigation” by different officers.

[35] The appellant submits that the police have been unwilling to deal with his complaint of an alleged assault in a “civilized manner” and that he intends to save his concerns (about an alleged entry to his apartment) “for a possible court hearing.”

Analysis and findings

[36] Section 14(3)(b) states that:

(3) A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy if the personal information,

(b) 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.

[37] Even if no criminal proceedings were commenced against any individuals, which is the case here, section 14(3)(b) may still apply. The presumption only requires that there be an investigation into a possible violation of law. [8]

[38] I have reviewed the records and find that the personal information in them was compiled and is identifiable as part of a possible violation of law. The police responded to a call alleging an assault and undertook an investigation that could have resulted in charges being laid. Although their investigation concluded with no charges laid, that determination was a result of the investigation into an allegation of a violation of law. My finding is not altered by the fact that no charges were laid, since the presumption only requires that there be an investigation into a possible violation of law. As a result, I find that disclosure of the personal information in the records that the police withheld would result in a presumed unjustified invasion of personal privacy under section 14(3)(b).

Do any of the factors in section 14(2) apply?

[39] Under section 38(b), the presumption in section 14(3)(b) must be weighed and balanced with any factors in section 14(2) that are relevant and that may apply to weigh in favour or against disclosure of the information. The police submit that no factors in section 14(2) apply. Although the appellant has not specifically identified any of the factors listed in section 14(2), it appears that he is implicitly arguing that the factor at section 14(2)(d) applies to favour disclosure.

[40] Section 14(2)(d) supports disclosure of someone else’s personal information where that information is needed to allow the requester to participate in a court or tribunal process. Section 14(2)(d) states that:

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

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

[41] In order to establish that the factor in section 14(2)(d) applies, the appellant must show that:

1. the right in question is a right existing in the law, as opposed to a non- legal right based solely on moral or ethical grounds;
2. the right is related to a legal proceeding that is ongoing or might be brought, as opposed to one that has already been completed;
3. the personal information at issue 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. [9]

[42] All four parts of the test must be met for this factor to apply. The appellant submits that he may wish to present some of his concerns before a court. He suggests he may want to challenge the accuracy of the police’s conclusions, including their reliance on what the appellant says were the affected parties’ incorrect statements that resulted in the police’s flawed conclusions (including that the appellant was unreliable).

[43] The appellant’s submissions do not reveal an existing or contemplated proceeding. The appellant suggests that he should have access to the affected parties’ witness statements so that he can prove that they were inaccurate. The appellant has provided no information to support that the information at issue is related to an ongoing legal proceeding, what bearing it has on the rights of the parties to such a proceeding, or that it is required to prepare for or ensure an impartial hearing. The appellant’s speculation that, if disclosed, the affected parties’ statements might prove to be inaccurate, or that he may save his concerns about the manner in which the police dealt with his concerns for court, does not meet the four-part test in section 14(2)(d). I find that the four-part test has not been met and that section 14(2)(d) does not apply.

[44] The parties did not submit that any unlisted factors favouring disclosure or non- disclosure apply, and I find that none do.

[45] For the reasons set out above, I find that the presumption against disclosure in section 14(3)(b) applies to the information at issue in the occurrence report and officers’ notes, and that no factors in favour of disclosure apply. I therefore find that disclosure of the withheld information would constitute an unjustified invasion of the affected parties’ personal privacy under section 38(b).

Issue C: Should the police’s exercise of discretion under section 38(b) be upheld?

[46] The section 38(b) exemption is discretionary, meaning that the institution can decide to disclose information even if it qualifies for exemption. An institution must exercise its discretion. On appeal, the IPC may determine whether the institution failed to do so.

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

• it does so in bad faith or for an improper purpose;
• it takes into account irrelevant considerations; or
• it fails to take into account relevant considerations.

[48] In either case, the IPC may send the matter back to the institution for an exercise of discretion based on proper considerations. [10] The IPC cannot, however, substitute its own discretion for that of the institution. [11]

[49] Some examples of relevant considerations are listed below. However, not all of these will necessarily be relevant, and additional considerations may be relevant: [12]

• the purposes of the Act , including the principles that:
• information should be available to the public,
• individuals should have a right of access to their own personal information,
• exemptions from the right of access should be limited and specific, and
• the privacy of individuals should be protected,
• the wording of the exemption and the interests it seeks to protect,
• whether the requester is seeking their own personal information,
• whether the requester has a sympathetic or compelling need to receive the information,
• whether the requester is an individual or an organization,
• the relationship between the requester and any affected persons,
• whether disclosure will increase public confidence in the operation of the institution,
• the nature of the information and the extent to which it is significant and/or sensitive to the institution, the requester or any affected person,
• the age of the information, and
• the historic practice of the institution with respect to similar information.

Representations

[50] The police submit that, in determining whether or not to disclose the affected parties’ personal information to the appellant, they considered that a purpose of the Act  is that individuals should have access to their own personal information and that the privacy of individuals should be protected.

[51] The police say that they disclosed all of the appellant’s personal information to him, and that the information not disclosed is the opinions and views of other witnesses regarding the incident. They argue that disclosing the other witnesses’ personal information does not affect the basis of the appellant’s complaints about the police or the outcome of the investigation.

[52] The police submit that they also considered that, because they concluded that the appellant’s own actions could be considered harassment, disclosure of the affected parties’ personal information could be considered a continuation of the harassment. The police say that they took all of these factors into account in exercising their discretion under section 38(b).

[53] The appellant did not make representations on the police’s exercise of discretion.

Analysis and findings

[54] I find that the police properly exercised their discretion under section 38(b) to withhold personal information of identifiable individuals other than the appellant. In withholding this information, I find that the police took into account that the records contain the appellant’s own personal information and weighed this consideration against the fact that the information at issue is the personal information of identifiable individuals which, if disclosed, would identify them and reveal other personal information about them, including their involvement in a police investigation. I also find that the police considered that exemptions from the right of access should be limited and specific, and that, in granting partial access, the police withheld only the personal information belonging to identifiable individuals other than the appellant.

[55] I am satisfied that the police considered the circumstances under which the records were created and balanced the appellant’s right of access under the Act  with protecting the privacy interests of the affected parties.

[56] I am also satisfied that the police did not take into account irrelevant factors in exercising their discretion, and there is no evidence before me that they acted in bad faith. I therefore uphold the police’s exercise of discretion to withhold the affected parties’ personal information under section 38(b) of the Act .

Issue D: Should the records be corrected under section 36(2) of the Act?

[57] As noted above, the appellant challenges the accuracy of the statements and information contained in the records. He submits that the occurrence report portrays him in a negative light while removing culpability from another individual involved in the altercation, and that certain individuals who were identified as “merely third parties” should be “held accountable for obstructing the investigation.”

[58] Section 36(1) of the Act  gives an individual a general right of access to their own personal information that an institution holds. Section 36(2) gives the individual a right to ask the institution to correct that personal information. If the institution denies the correction request, the individual may require the institution to attach a statement of disagreement to the information. Sections 36(2)(a) and (b) state that:

Every individual who is given access under subsection (1) to personal information is entitled to,

(a) request correction of the personal information if the individual believes there is an error or omission;

(b) require that a statement of disagreement be attached to the information reflecting any correction that was requested but not made;

[59] The IPC has previously established that in order for an institution to grant a request for correction, the following three requirements must be met:

1. the information at issue must be personal and private information; and
2. the information must be inexact, incomplete or ambiguous; and
3. the information cannot be a substitute of opinion. [13]

[60] In each case, the appropriate method for correcting personal information should be determined by considering the nature of the record, the method indicated by the requester, if any, and the most practical and reasonable method in the circumstances. [14]

[61] The right of correction applies only to a requester’s personal information. [15]

Representations

The police’s representations

[62] The police submit that the appellant’s correction request is not a correction request, but more of a service complaint. They say the appellant was not asking the police to correct his personal information, but rather complaining that the attending officers did not investigate the complaint correctly. The police say that the appellant states in his correction request that:

• the facts of the investigation were wrong
• the investigating officers did not get both sides of the story and were not interested in what the appellant had to say
• he was upset with the way the officers interviewed him
• he did not believe there was a witness to the incident
• the police failed to investigate a violation of a regulation of the condominium board.

[63] The police argue that it would be inappropriate to substitute the opinions of the attending officers and the individuals interviewed for the appellant’s opinion on how he or the situation appeared to them. The police say that they did not correct the statements made to officers by others, or the officers’ comments, as they considered this to be their opinions.

[64] The police say that they nevertheless attached the appellant’s statement of disagreement to the occurrence report and added an administrative supplementary report to the general occurrence report advising that the statement of disagreement had been attached.

The appellant’s representations

[65] The appellant says that, contrary to what Officer A wrote in his first report, Officer S did not talk to the appellant “at all.” He says that Officer B spoke to people who had “a personal interest in defaming” the appellant and then ordered Officer A to end the investigation.

[66] The appellant insists that Officer A’s implication in his report that both officers spoke to the appellant is absurd and false. According to the appellant, Officer B’s “report is full of misrepresentations, bending or distorting what happened or what [the appellant] said.”

[67] In the statement of disagreement that the appellant submitted to the police and that has been attached to the occurrence report, the appellant describes his version of events, the injuries he says he sustained, as well as his views about individuals involved in the incident (and generally, such as members of the condominium’s board of directors, the Attorney General and the Premier of Ontario). He describes what he says was a “trespass” into his unit for which he believes the alleged offender ought be charged, and argues that the incident to which police responded cannot be considered separately from what he says are the “general poor conditions” and “lack of security” at his condominium.

Analysis and findings

[68] As noted above, past IPC orders have found that, in order for the right of correction under section 36(2) to arise, the person seeking the correction must meet all three parts of a three-part test. [16] First, the information must be personal information; second, the information must be inexact, incomplete or ambiguous; and third, the correction cannot be a substitution of opinion.

Part 1: information must be personal information

[69] I have already found above that the records contain the appellant’s personal information as defined in section 2(1) of the Act . However, I find that the second and third parts of the three-part test for correction have not been met.

Part 2: information must be inexact, incomplete or ambiguous

[70] Turning to the second part of the test, I find that the appellant has not provided sufficient evidence to support his position that the information he seeks to be corrected is inexact, incomplete or ambiguous.

[71] The appellant submits that the records are incomplete because they omit information about his injuries and about what he alleges is nefarious conduct of various condominium board members (who were not present at, or involved in, the incident under investigation). The appellant’s correction request also impugns the investigation and the manner in which he was interviewed. From my review of the records, however, they reflect the subjective perspective and views of the officers with respect to their interactions with and observations of the appellant and the situation. The records are notes and an occurrence report made by police officers responding to an incident. They are investigatory in nature and are subjective in the sense that they contain the written accounts of the individual responding officers. [17]

[72] The IPC has previously held that records of an investigative nature cannot be “incorrect,” “in error” or “incomplete” where they simply reflect the views of the individuals whose impressions are being set out. [18] In other words, it is not the truth of the recorded information that is determinative of whether a correction request should be granted, but whether or not what is recorded accurately reflects the author’s observations and impressions at the time the record was created.

[73] I agree with this reasoning, and adopting it here, I find that the police’s summary and conclusions regarding their investigation are not incomplete or inexact. There is no suggestion before me that the records do not reflect the officers’ accounts of what the witnesses told them, and I accept the police’s submission that they do so accurately.

Part 3: correction must not be a substitution of opinion

[74] With respect to the third part of the test for correction under section 36(2), I find that the correction request seeks to substitute language or a description of events in the records to craft a version of it that the appellant believes is more aligned with his own impressions and that includes his views about the condominium’s board of directors, use of a common area, and property management generally. In this regard, I agree with the police’s submission that the appellant’s correction request effectively amounts to a request to substitute the officers’ and witnesses’ opinions with the appellant’s own opinion of the situation, as well his opinions about specific condominium-related issues outside the complaints investigated by the police.

[75] The contents of the records can best be characterized as observations and statements of opinion, as they reflect the subjective perspective of witnesses and the investigating officers. Although the appellant disagrees, he is in effect asking that his opinions be substituted for those of the officers and witnesses, which is precluded by the third requirement in the three-part test. [19]

[76] The officers’ conclusions are their opinions. From my review of the correction request, it appears that a number of the appellant’s disputes relate to the adequacy, fairness or validity of the police’s conclusions. For example, the appellant has challenged the police’s conclusions, the absence of comment about the appellant’s alleged injuries, the condominium board’s alleged misdeeds, and that charges were not laid against another individual. However, the IPC is not the appropriate forum for disputes about the outcome of police investigations, nor is a correction of records the appropriate remedy if the appellant disagrees with the manner or outcome of the police’s investigation, including their decision to close an investigation without charges.

[77] For these reasons, I find that the three-part test for correction of the records has not been met and that the police properly refused the correction request.

[78] Finally, I note that the police attached the appellant’s statement of disagreement to the occurrence report under section 36(2)(b), as they were required to do.

[79] I uphold the police’s decision to deny the correction request and, for the reasons set out above, I dismiss this appeal.

ORDER:

I uphold the police’s decision to deny access to the withheld portions of the records at issue and to deny the appellant’s correction request, and dismiss this appeal.

Original Signed By:		July 25, 2022
Jessica Kowalski
Adjudicator