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Document
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PO-2040
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File #
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PA-010264-1
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Institution/HIC
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Ministry of Community, Family and Children's Services
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Summary
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NATURE OF THE APPEAL: The Ministry of Community, Family and Children's Services (formerly the Ministry of Community and Social Services) (the Ministry), received a request under the Freedom of Information and Protection of Privacy Act (the Act ) for "copies of all reviews, audits or investigations carried out by [the Ministry] related to transfer payment agencies, which deliver either residential, day program or workshop services for people with developmental handicaps." The requester also asked for the audit on a particular agency (the agency), which had been denied to him in response to an earlier request under the Act . The Ministry issued a decision granting access to a number of responsive records, and denying access to portions of other records on the basis of section 21(1) (invasion of privacy). As far as records relating to the particular agency were concerned, the Ministry identified that three audits existed, and denied access to them on the basis of the exemption in section 14(1)(a) of the Act (interference with a law enforcement matter). The requester, now the appellant, appealed the Ministry's decision. The appeal was not resolved through mediation, and it was transferred to the adjudication stage. I sent a Notice of Inquiry to the Ministry, and received representations in response. In the Ministry's representations it identified that a police service (the Police) was involved in the law enforcement matter that raised the section 14(1)(a) issue. I then sent a copy of the Notice to the Police, and received representations. Finally, I sent the Notice to the appellant, along with the representations provided by both the Ministry and the Police, and he submitted representations on the various issues raised in the Notice. RECORDS: There are three records at issue in this appeal. They are: Record 1 - a 50-page "Financial Review" of the agency conducted by the Ministry, dated December 1997 Record 2 - an undated 59-page "Financial Review (Additional Information)" of the agency conducted by the Ministry Record 3 - a 32-page "Final Report - Financial Management Audit - Phase II" of the agency conducted by the Ministry, dated October 1998 DISCUSSION: The Ministry's sole basis for denying access to the three records is section 14(1)(a) of the Act , which reads as follows: A head may refuse to disclose a record where the disclosure could reasonably be expected to, interfere with a law enforcement matter; The purpose of the section 14(1)(a) exemption is to provide an institution with the discretion to preclude access to records in circumstances where disclosure could reasonably be expected to interfere with an ongoing law enforcement matter. The institution bears the onus of providing evidence to substantiate that, first, a law enforcement matter is ongoing and second, that disclosure of the records could reasonably be expected to interfere with the matter (See Orders P-324 , P-403 and M-1067 ). In Order PO-1747 , Senior Adjudicator David Goodis stated the following with respect to the words "could reasonably be expected to" in the law enforcement exemption: The words "could reasonably be expected to" appear in the preamble of section 14(1), as well as in several other exemptions under the Act dealing with a wide variety of anticipated "harms". In the case of most of these exemptions, in order to establish that the particular harm in question "could reasonably be expected" to result from disclosure of a record, the party with the burden of proof must provide "detailed and convincing" evidence to establish a "reasonable expectation of probable harm" [see Order P-373 , two court decisions on judicial review of that order in Ontario (Workers' Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464 at 476 (C.A.), reversing (1995), 23 O.R. (3d) 31 at 40 (Div. Ct.), and Ontario (Minister of Labour) v. Big Canoe , [1999] O.J. No. 4560 (C.A.), affirming (June 2, 1998), Toronto Doc. 28/98 (Div. Ct.)]. In order for a record to qualify for exemption under this section, the matter to which the record relates must first satisfy the definition of the term "law enforcement" found in section 2(1) of the Act . This section states: "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, and (c) the conduct of proceedings referred to in clause (b); The Ministry submits that at the time the appellant made his request, the agency informed the Ministry that a "police investigation was ongoing and that the documents sought by the appellant formed part of that ongoing investigation". After receiving the Notice of Inquiry in this appeal, the Ministry states that it confirmed with the local police force "that the legal activities regarding this case remain active. The police indicate that the investigation has been concluded and that charges have been laid and are pending before the courts". The Ministry does not indicate who has been charged or the nature of the charges. In responding to the question
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Legislation
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Subject Index
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Signed by
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Tom Mitchinson
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Published
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Sep 06, 2002
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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