ORDER MO-4347

Appeal MA21-00097

Hanover Police Services Board

March 20, 2023

Summary: The Hanover Police Services Board (the police) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for an occurrence report related incident where the appellant’s vehicle was struck by a shopping cart. The police granted partial access to the requested information, denying access to the personal information of an affected party pursuant to the mandatory personal privacy exemption at section 14(1) of the Act.

In this order, the adjudicator finds that because the occurrence report also contains the personal information of the appellant, the appropriate exemption to be claimed is the discretionary personal privacy exemption at section 38(b) of the Act. She finds that while the exemption applies to some of the withheld information, in the circumstances, it would not be an unjustified invasion of personal privacy to disclose the affected party’s name and address. The adjudicator orders the police to disclose that information to the appellant.

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

Orders Considered: Orders MO-2980, MO-4041 and MO-4213.

OVERVIEW:

[1] This order determines whether the appellant is entitled to access to the personal information of an affected party involved in an incident where the appellant’s vehicle was struck and damaged by a shopping cart. Police responded to the incident and spoke to both the appellant and an affected party who was present at the time; an occurrence summary was compiled. The appellant wishes to commence a civil action for damages against the affected party but does not know their identity.

[2] The Hanover Police Services Board (the police) received a request from the appellant under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for the occurrence summary created by the officer who responded to the incident where the appellant’s car was struck by a shopping cart. In his request, the appellant named the responding officer, specified the date on which the incident occurred and identified an affected party’s licence plate number. The appellant advised that he sought access to information about the affected party in order to initiate a claim against them in small claims court.

[3] The police issued a decision granting partial access to the occurrence summary. Portions were withheld under the discretionary law enforcement exemption at sections 8(2)(a) and (c) and the mandatory personal privacy exemption at section 14(1) of the Act.

[4] The appellant appealed the police’s decision to the Information and Privacy Commissioner of Ontario (the IPC). A mediator was assigned to attempt to facilitate a mediated resolution between the parties.

[5] During mediation, the appellant confirmed that he only seeks access to the information about the other individual involved in the incident (the affected party). That information is located on page one of the occurrence report under the heading “Involved Person(s).” As a result, the law enforcement exemptions at sections 8(2)(a) and (c) are not at issue in this appeal.

[6] The mediator attempted to contact the affected party to see if they would consent to the disclosure of their information. The mediator was unable to reach the affected party and consent was not obtained.

[7] As a mediated resolution between the parties was not reached, the appeal was transferred to adjudication. As the adjudicator assigned to the appeal, I decided to conduct a written inquiry.

[8] On my review of the occurrence summary, I noted that it contains information that might qualify as the personal information of the appellant. As a result, in the Notice of Inquiry that I sent to the parties, I included the possible application of the discretionary personal privacy exemption at section 38(b), which applies if the record contains the personal information of the appellant.

[9] I sought and received representations from the police and the appellant which were shared between them pursuant to the IPC’s Code of Procedure and Practice Direction 7.

[10] Representations were also sought from the affected party. The affected party did not provide written representations but contacted the IPC by telephone to confirm that they do not consent to the disclosure of their personal information.

[11] In this order, I find that, in the circumstances of this appeal, the disclosure of the affected party’s name and address to the appellant is not an unjustified invasion of the personal privacy of the affected party and that the discretionary personal privacy exemption at section 38(b) does not apply to that information. I order the police to disclose the affected party’s name and address to the appellant.

RECORDS:

[12] The record is an occurrence summary for the incident. Remaining at issue is the information about the affected party found on page 1 of the occurrence summary under the heading “Involved Person(s).”

ISSUES:

1. Does the occurrence summary contain “personal information” as defined in section 2(1) and, if so, whose personal information is it?
2. Does the discretionary personal privacy exemption at section 38(b) apply to exempt the information at issue from disclosure?

DISCUSSION:

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

[13] To decide which sections of the Act may apply to a record, the IPC must first decide whether the record contains “personal information,” and if so, whose. As I explain below, the report contains the appellant’s personal information (as well as other’s). His request is, therefore, a request for his own personal information under Part II of the Act.[1]

[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, such as paper records, electronic records, digital photographs, videos, or maps.[2] Information is “about” an “identifiable individual” when it refers to the individual in a personal capacity, revealing something of a personal nature about them, and it is reasonably to expect that the individual can be identified from the information alone or combined with other information.

[15] Section 2(1) of the Act gives a list of examples of personal information. Personal information includes information relating to the age of the individual [paragraph (a)], the address and telephone number of the individual [paragraph (d)] and the individual’s name if it appears with other personal information relating to the individual [paragraph (h)]. The list of examples of personal information under section 2(1) is not a complete list, meaning that other kinds of information can also be “personal information.”[3]

[16] In this case, the occurrence summary contains the personal information of both the appellant as well as that of the affected party. It includes their names, together with their birthdates and addresses. It also contains the appellant’s telephone number. The information to which the appellant seeks access and that remains at issue includes the personal information of the affected party.

Issue B: Does the discretionary personal privacy exemption at section 38(b) apply to exempt the information at issue from disclosure?

[17] Section 36(1) of the Act gives individuals a general right of access to their own personal information held by an institution. Section 38 provides a number of exemptions from this right. As the occurrence summary contains the requester’s own personal information, the appropriate personal privacy exemption to consider is the discretionary one at section 38(b).[4] It states:

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

(b) if the disclosure would constitute an unjustified invasion of another individual’s personal privacy[.]

[18] Under section 38(b), where a record contains personal information of both the appellant and another individual, and disclosure of the information would be an “unjustified invasion” of the other individual’s personal privacy, the institution may refuse to disclose that information to the appellant. This involves a weighing of the appellant’s right of access to their own personal information against the other individual’s right to the protection of their privacy. If disclosing another individual’s personal privacy would not be an unjustified invasion of personal privacy, then the information is not exempt under section 38(b).

[19] Also, a requester’s own personal information, either standing alone or provided it can reasonably be severed from the personal information of other identifiable individuals, cannot be exempt under section 38(b) as its disclosure could not, by definition, be an unjustified invasion of another individual’s personal privacy.[5] In this case, the police have already disclosed the appellant’s own personal information where it can reasonably be severed. Therefore, the issue that remains is whether the personal information of the affected party is exempt under section 38(b).

[20] Sections 14(1) to (4) provide guidance in determining whether disclosure would be an unjustified invasion of personal privacy under section 38(b). Section 14(2) provides a list of the types of information where disclosure is presumed to constitute an unjustified invasion of personal privacy.

[21] Section 14(4) sets out certain types of information where disclosure is not an unjustified invasion of personal privacy. Neither party submits that any of the paragraphs (a) to (c) of section 14(4) apply to the records in this appeal. I agree and find that none of the situations described in section 14(4) are applicable here.

[22] In determining whether the disclosure of the affected party’s personal information in the occurrence summary would be an unjustified invasion of personal privacy under section 38(b), therefore, I will consider and weigh the relevant considerations including the factors and presumptions in sections 14(2) and (3) and will balance the interests of the parties.[6]

[23] The relevant factors and presumptions in sections 14(2) and (3) that I will consider below, are the following:

14(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;

…

(h) the personal information has been supplied by the individual to whom the information relates in confidence;

….

14(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;

….

Representations

[24] The representations submitted by the police focus on their view that because the occurrence summary was prepared during the course of an investigation into a violation of the law, the presumption at section 14(3)(b) applies to exempt the information relating to the affected party. The police explain that the occurrence summary was prepared in response to a report filed by the appellant that his vehicle was struck and damaged by a shopping cart used by the affected party. The police submit that the responding officer attended at the location of the incident, spoke to both parties and created the occurrence summary. The police submit that although no charges were laid, the occurrence summary was created as part of an investigation into a potential violation of law.

[25] The police also submit that the factor at section 14(2)(h) is a relevant consideration in their decision not to disclose the personal information of the affected party. The factor at section 14(2)(h) requires the police to consider whether the personal information has been supplied by the individual to whom the information relates, in confidence. The police submit that there is an expectation of confidentiality when they collect personal information in any law enforcement matter. They submit that such personal information must be safeguarded and if it were released without consent, people may be hesitant to provide information to police in the future. They submit that it is essential to the operation of the police that they maintain the trust bestowed on them by protecting personal information obtained in the course of investigations. The police submit that both the affected party, in supplying their personal information, and the police, in collecting the affected party’s personal information, had an expectation that the information would be treated confidentially.

[26] The police further submit that they considered, but dismissed, the possible application of the factor weighing in favour of disclosure at section 14(2)(d), which considers whether the disclosure of the personal information is which considers whether the disclosure of the personal information is relevant to a fair determination of rights affecting the person who made the request. The police submit that they considered the other factors in section 14(2) that favour the disclosure of another person’s personal information[7] but determined that none of them apply.

[27] Finally, the police submit that they reviewed and considered the factors weighing against disclosure at sections 14(2)(e) (unfair exposure to harm), (f) (highly sensitive), (g) (unlikely to be accurate or reliable) and (i) (unfair damage to reputation). However, they submit that they determined none of these factors to be relevant in this case.

[28] The appellant’s representations are very brief. He submits that he is seeking the name of the affected party so that he “can take [them] to court to recover damage to [his] property.” As I understand the appellant’s submission in this respect, it raises the possible application of whether disclosure of the affected party’s personal information is relevant to a fair determination of the appellant’s rights, as contemplated by section 14(2)(d).

[29] As indicated above, the affected party was contacted to seek their view on the disclosure of their personal information. Although they did not submit written representations, they advised that they do not consent to the disclosure of their personal information in the occurrence summary to the appellant.

Analysis and findings

[30] For the reasons that follow, I find that disclosure of the affected party’s name and address would not constitute an unjustified invasion of their personal privacy. Accordingly, I find that the discretionary exemption at section 38(b) does not apply to this information. However, I find that the exemption does apply to the remaining personal information of the affected party contained in the occurrence report, which includes their birthdate.

[31] In reaching my finding that disclosure would not constitute an unjustified invasion of the affected party’s personal privacy, I considered the presumption at section 14(3)(b) (investigation into a possible violation of law) and the factors at sections 14(2)(d) (fair determination of rights) and (h) (supplied in confidence). Based on the parties’ representations, I also considered an unlisted factor weighing against disclosure that is implicit in the police’s representations: the risk of disclosure undermining public confidence in the police.

[32] I agree with the police and find that the factors weighing against disclosure at sections 14(2)(e) (exposed unfairly to harm), (f) (highly sensitive), (g) (unlikely to be accurate) and (i) (unfair damage to reputation) are not relevant to my determination in this case. I also find that the factors weighing in favour of disclosure at sections 14(2)(a) (public scrutiny), 14(2)(b) (public health and safety), 14(2)(c) (purchase of goods and services) are not relevant considerations in this appeal.

Section 14(3)(b) – investigation into a possible violation of law

[33] Section 14(3)(b) states:

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[.]

[34] Section 14(3)(b) only requires that the personal information was compiled as part of an investigation into a possible violation of law; there is no need for charges to be laid against any individuals.[8]

[35] Based on my review of the occurrence summary and the police’s representations, I find that the presumption against disclosure at section 14(3)(b) applies to the information at issue and weighs against its disclosure. The police attended an incident to determine whether a possible violation of law occurred. Their determination not to lay charges does not alter the fact that occurrence summary was created as part of an investigation into a possible violation of law.

[36] When considered in an analysis under section 38(b), a finding that the section 14(3) presumption is present does not determine the matter. I must also consider factors at section 14(2) and balance the relevant factors and presumptions against the interests of the parties.[9]

Section 14(2)(d) – fair determination of rights

[37] Although the appellant does not specifically mention the factor at section 14(2)(d), his representations are clear that he seeks requires the affected party’s personal information to assist him in pursuing a law suit against the affected party in an attempt to recover damages to his vehicle resulting from the incident recorded by the police in the occurrence report. This intent was also made clear by the appellant in his request for the information, submitted to the police. In my view, the appellant’s intent to explore the possibility of recovering damages in civil court raises the potential application of the factor at section 14(2)(d) which, for the reasons set out below, I find to be a relevant consideration in this case.

[38] Section 14(2)(d) states:

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[.]

[39] For section 14(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 the common law or statute law, as opposed to a non-legal right based solely on moral or ethical grounds;
2. the right is related to a proceeding which is either existing or contemplated, not one which has already been completed;
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.[10]

[40] Previous orders of the IPC have considered whether the disclosure of an individual’s personal information, specifically, name and address, are significant to the fair determination of rights of individuals suffering damage to themselves or their vehicles in the context of motor vehicle accidents and incidents involving cyclists colliding with the opening door of a stationary motor vehicle, commonly referred to as “dooring.” In these orders, the IPC has found that motorists’ names and addresses contained in occurrence reports are not exempt under section 38(b) and they have been ordered disclosed.[11] I also note that in these orders, the fact that the incident did not fall squarely within the definition of motor vehicle accident in the Highway Traffic Act [12] and therefore, the statutory framework of auto insurance and reporting obligations as the source of their legal rights in the claim for damages, was found not to be relevant to or preclude the application of section 14(2)(d).

[41] In this case, I accept that the appellant has both a right and an intention to explore the possibility of commencing a lawsuit for damages arising from the incident. As I understand it, a claim could be made in small claims court on the basis of negligence in common law. By accepting this, I make no finding about the merits of any claim that might be brought before the court or whether the court would hear such matter.

[42] I also acknowledge that the appellant’s knowledge of the identity of the other individual involved in the incident is significant to filing a claim and I find therefore that the personal information of the affected party, specifically their name and address, is required to commence a lawsuit. Accordingly, I find that the appellant has established the elements of the four-part test, described above.

[43] I note that in reviewing this factor, previous orders of the IPC have considered the effect of the existence of other disclosure processes or alternative means available to the appellant to obtain the information to which access is being sought under the Act. Some of those orders have noted that there are circumstances where an appellant could commence a lawsuit against an affected party as an unnamed defendant and then use the Rules of Civil Procedure to obtain their name and contact information.[13] While these orders have established that the existence of other possible methods of access does not preclude the appellant from exercising his access rights under the Act and appellants have a right to seek access relevant information in the most efficient, cost-effective manner they see fit,[14] the existence of another possible method of access does reduce the weight to be given to this factor when balancing it with other interests.[15]

[44] I agree with and will adopt the reasoning expressed in these prior IPC orders when considering the weight to be given this factor when balancing the interests of the parties, below, which I will discuss below.

Section 14(2)(h) – supplied in confidence

[45] Section 14(2)(h) states:

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,

(h) the personal information has been supplied by the individual to whom the information relates in confidence[.]

[46] This factor weighs against disclosure of the personal information if both the affected party and the police had an expectation that the information would be treated confidentially and that the expectation is reasonable in the circumstances.[16]

[47] This factor has been considered in the cases discussed above which address requests for information in response to dooring incidents. In Order MO-4213, the adjudicator noted that although, in that case, the police made submissions that there is a general implicit expectation of confidentiality when an affected party provides information to the police, that implied expectation is not one of absolute confidentiality. The adjudicator in Order MO-4213 stated, in the context of the dooring incident, that she was not persuaded that the affected party held a reasonable expectation of absolute confidentiality concerning the information gathered in the course of the police’s investigation into the incident.

[48] In the case before me that relates to an incident in which the appellant’s vehicle incurred damage, and in the absence of any express assurance of confidentiality, I do not accept that either party could be said to have a reasonably held expectation of absolute confidentiality with regards to the disclosure of their basic personal information to the other party involved in the incident, specifically, their name and address.

[49] Additionally, the affected party was provided with an opportunity to make their views known about the disclosure of their personal information and make submissions on the issue, including the application of any relevant factors or presumptions set in section 14(2) and 14(3). Although the affected party generally objected to the disclosure of their information, they did not make submissions stating that they had an explicit expectation of confidentiality with respect to the disclosure of the personal information in the context in which it was provided.

[50] Based on the evidence before me, and in keeping with the reasoning expressed in Orders MO-4041 and MO-4213, I find that although section 14(2)(h) is a relevant consideration that weighs in favour of privacy protection of the personal information of the affected party but, given the context in which it was provided it carries minimal weight with respect to the disclosure of their name and address. With respect to the affected party’s birthdate, however, I find that this factor carries moderate weight.

Unlisted factor - public confidence in the police

[51] In their representations, the police submit that personal information must be safeguarded and if it were released without consent, people may be hesitant to provide information to police in the future. The police also submit that it is essential to their operation that they maintain the trust bestowed on them by protecting the personal information obtained in the course of investigations. In my view, this submission raises the possible application of an unlisted factor: disclosure risks undermining public confidence in the police.

[52] This unlisted factor, of public confidence in the police, was considered by the adjudicator in Order MO-4213, previously mentioned, which addressed disclosure of personal information in the context of a cyclist having been doored by a motor vehicle. The adjudicator found that it was a relevant factor to consider but that it carried minimal weight against disclosure of the information. The adjudicator stated:

… In cases where the information was provided in confidence and the police have not been able to notify an affected party of a request for their information nor provided them with an opportunity to respond, public confidence in the police is a factor that will weigh heavily against disclosure. However, in the circumstances of this appeal, where the affected party has knowledge of the request and the possibility of disclosure as a result of the appeal process and has been provided with an opportunity to make representations, I find that public confidence in the police is a factor with minimal weight against disclosure of the affected party’s name and address.

[53] Similarly, while I find that this factor is a relevant consideration in the disclosure of an affected party’s personal information, in this case, where the affected party has been advised of the request and the possibility of the disclosure as a result of the appeal process and has been provided with, and declined, to make representations, I find that public confidence in the police is a factor with minimal weight against disclosure of their name and address. With respect to the affected party’s birthdate, however, I find that this unlisted factor carries moderate weight.

Finding on the application of section 38(b): weighing and balancing the interests of the parties

[54] I have considered and found relevant the presumption at section 14(3)(b), the factors at sections 14(2)(d) and 14(2)(h) and the unlisted factor of public confidence in the police. I have weighed this presumption and these factors against each other and considered them in the context of balancing the interests of the parties.

[55] In the circumstances, I give considerable weight to the section 14(3)(b) presumption that disclosure of the affected party’s name, address and birthdate would constitute an unjustified invasion of their personal privacy because it was compiled as part of an investigation into a possible violation of law. This presumption weighs against disclosure.

[56] I have also considered that the information was supplied in confidence [the factor at section 14(2)(h)] and whether its disclosure might impact the public’s confidence in the police (the unlisted factor). As explained above, I find that while these factors are relevant considerations also weighing against disclosure, although, I find that they carry minimal weight in the circumstances.

[57] However, with respect to the affected party’s name and address only, I find that the presumptions and factors weighing against disclosure are outweighed by the relevance of the disclosure of that personal information (the affected party’s name and address) to the fair determination of the appellant’s rights [the factor at section 14(2)(d)]. In balancing the parties’ interests, I have considered that the appellant’s request for the affected party’s personal information arises from their involvement in an incident which the appellant claims has caused damage to his vehicle. I acknowledge the affected party has objected to the disclosure of their personal information. While I recognize that were their personal information disclosed, the affected party may be exposed to unwanted contact by the appellant in relation to the commencement of a claim for damage, if one can be established, I find that the provisions of the Act that serve to protect personal privacy should not be used for the affected party to avoid the consequences of their actions. I find that the fair determination of both parties’ rights as a result of the incident weighs heavily in favour of disclosure of a limited amount of the affected party’s personal information, specifically their name and address.

[58] As a result, I find that it would not be an unjustified invasion of the personal privacy of the affected party to disclose their name and address.

[59] With respect to the disclosure of the affected party’s birthdate, I do not find that the presumption and factors I have considered are outweighed by the factor at section 14(2)(d) (which weighs in favour of disclosure) and, subject to my review of the police’s exercise of discretion below, I will uphold the police’s decision to withhold it.

[60] Accordingly, I find that the discretionary personal privacy exemption in section 38(b) does not apply to the affected party’s name and address and will order that the police disclose this information to the appellant. Otherwise, subject to my findings below about exercise of discretion, I find that section 38(b) applies to any remaining information at issue, specifically, the affected party’s birthdate and any other personal information of the affected party in the occurrence summary that has not been disclosed.

Exercise of discretion

[61] The exemption at section 38(b) is a discretionary exemption and permits the police to disclose information, even if it qualifies for exemption. Because I have upheld the police’s decision to withhold some of the affected party’s personal information under section 38(b), specifically their birthdate and other personal information in the record, I must review the police’s exercise of discretion. If I find that the police failed to exercise their discretion or if they erred in doing so, for example, they did so in bad faith or for an improper purpose; they took into account irrelevant considerations or failed to take into account relevant ones,[17] I may send the matter back to the police for an exercise of discretion based on proper considerations but cannot substitute my own discretion.[18]

[62] I have reviewed the considerations relied upon by the police and find that they properly exercised their discretion in withholding the affected party’s personal information under section 38(b). While I have reached a different conclusion from the police on the application of section 38(b) to the affected party’s name and address, I am satisfied that, in withholding the remaining information at issue, the affected party’s birthdate and any other personal information, the police exercised their discretion appropriately.

[63] I find that the police did not act with an improper purpose or in bad faith. I am of the view that the police took into account relevant factors, including the parties’ competing interests and risks associated with disclosure in the particular circumstances of this case.

[64] As there is no evidence that the police failed to take relevant factors into account or that they considered irrelevant factors, I uphold the police’s exercise of discretion under section 38(b) in denying access to the affected party’s personal information, other than their name and address, found in the occurrence summary.

ORDER:

1. I order the police to disclose the affected party’s name and address as they appear in the occurrence report to the appellant, by April 26, 2023 but not before April 21, 2023.
2. I otherwise uphold the police’s decision.
3. In order to verify compliance with this order, I reserve the right to require the police to provide me with the information they provide to the appellant.

Original Signed by:		March 20, 2023
Catherine Corban
Adjudicator