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Document
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MO-1353-I
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Institution/HIC
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Hamilton-Wentworth Regional Police Services Board
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Summary
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NATURE OF THE APPEAL: This appeal arises out of a request sent to the Hamilton-Wentworth Regional Police Services Board (the Police) for information concerning an individual who had been employed by the Police. The request was dated July 25, 2000, and stated that it was a formal request for the disclosure of any records relating to particular events concerning an identified individual. The letter also identified that the request was for "all requested records in accordance with the Municipal Freedom of Information and Protection of Privacy Act " (the Act ). The Police responded by letter dated August 3, 2000. This letter referred to the request and indicated that there was some question as to whether these records were available under the Act . The letter went on to state that the records at issue contained "personal information" as defined by the Act , and described a number of provisions from section 14 of the Act which applied. The Police advised the requester that access was being denied, with reference to the wording of sections 14(3)(b) (presumed unjustified invasion of privacy - law enforcement) and 14(3)(d) (presumed unjustified invasion of privacy - employment or educational history). The letter also stated that there were no "compelling" circumstances outweighing the purpose of the section 14 exemption, and that certain described factors under section 14(2) (public scrutiny and promotion of health and safety) could not be taken into account where disclosure is presumed to constitute an unjustified invasion of privacy. Finally, the letter identified that the Police had also considered the application of sections 32(f) and (g) of the Act , but concluded that it did not appear that the requester was seeking the records in the context of performing law enforcement activities. The requester, now the appellant, appealed the decision to deny access. The Registrar from the Commissioner's Office notified the Police that the appeal had been filed. The Police advised the Registrar that they had responded to the appellant's letter as a request for information pursuant to section 32 of the Act , and not as a request for access to records under Part I of the Act . The Police state: ... it is virtually impossible for the Police Service to respond to an appeal of a denial of access where it has yet to consider the applicability of the relevant access provisions. The Police take the position that the request received from the appellant was not a request under Part I of the Act . The appellant is of the view that the original request constituted a valid request under Part I, and that the Police's August 3 letter constituted an access decision that could be appealed to this Office. I sent a Notice of Inquiry to the Police, asking for representations on the issue of whether the appellant's July 25 letter is a valid request under Part I of the Act . The Police provided written representations on this issue. It is not necessary for me to hear from the appellant before reaching my decision. The only issue to be decided at this time is whether the July 25 letter sent by the appellant to the Police is a valid request under Part I of the Act . If it is not, then I have no jurisdiction to review the August 3 response as a decision, and the appellant would be required to make a new request in accordance with the requirements of the Act . If, on the other hand, the letter is a valid Part I request, the Police are required to respond in accordance with the applicable provisions of the Act and I am in a position to review that decision on appeal. DISCUSSION: The Police submit that the letter from the appellant represented a request for disclosure between law enforcement agencies under section 32(f) of the Act , not an access request under Part I. In support of this position, the Police provide a contextual background of events leading to the appellant's July 25 letter. The Police state that, at some point prior to July 25, the office of the Chief of Police (the Chief) received a telephone enquiry from a representative of the appellant seeking records relating to the former employee. This phone call was forwarded to counsel for the Police. Counsel declined to respond to the substance of the request by telephone, but explained the manner in which information of this nature is classified by the Police in compliance with the Police Services Act , as well as potential avenues for obtaining the information. The Police state: It was indicated that, in accordance with [the Act ], by which [the Police Service] was bound, Police Service records may be available, for example, with the consent of the party to whom the information relates, though third party information would likely be severed unless the third parties also agree to release. Alternatively, should the requester be engaged in a law enforcement function and seek the information for that purpose, disclosure under s. 32(f) or (g) may be considered, pursuant to a written request to that effect. To our knowledge, there was no further related correspondence nor conversation until the letter of July 25, 2000. This letter was forwarded directly to the Chief and not to the Freedom of Information Branch. The letter did not contain a consent to release executed by the person to whom the information related, and sought " disclosure of all requested records". In fact, when the author referred to [the Act ] in paragraph 4, he asked the Chief to consider "disclosure" thereunder. "Disclosure" is the term used in s. 32(f) and s. 33(g) of [the Act ]. The Police point out that the required $5 request fee for a Part I access request was not included with the July 25 letter. The Police elaborate as follows: It is not the position of the Police Service that all letters seeking records directed to the Chief of Police are to be processed outside Part I. As a rule, where the Chief receives a request for information, it is forwarded to the Freedom of Information Branch for appropriate action. Part I access requests are dealt with by the FOI Branch in the prescr
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Legislation
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Subject Index
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Published
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Oct 26, 2000
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Type
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Order – Interim
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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