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Document
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P-1490
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File #
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P_9700214
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Institution/HIC
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Ministry of the Attorney General
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Summary
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NATURE OF THE APPEAL: The appellant made a request under the Freedom of Information andProtection of Privacy Act (the Act ) to the Ministry of the AttorneyGeneral (the Ministry). The request was for access to all records relating tothe appellant, who's bookstore was alleged to have been spreading hatepropaganda in the 1980's. The Ministry responded by providing partial access to the records. Accesswas denied to the remaining portions of the records pursuant to the followingexemptions: law enforcement - section 14(2)(a) solicitor-client privilege - section 19 danger to safety or health - section 20 invasion of privacy - sections 21 and 49(b) discretion to refuse appellant's own information - section 49(a) The appellant appealed the Ministry's decision to deny access. This office sent a Notice of Inquiry to the Ministry and the appellant. Representations were received from the Ministry only. In its representations,the Ministry indicated that it has decided to disclose Records 3-18 to 3-20(with the exception of the name of an individual, severed pursuant to section21) and Records 3-33 to 3-34. DISCUSSION: DISCRETION TO REFUSE REQUESTER'S OWN INFORMATION Under the Act , "personal information" is defined, in part,to mean recorded information about an identifiable individual. The Ministrysubmits, and I agree, that the records contain the personal information of theappellant. Section 47(1) of the Act gives individuals a general right of accessto their own personal information held by a government body. Section 49provides a number of exceptions to this general right of access. Section 49(a)reads: A head may refuse to disclose to the individual to whom the informationrelates personal information, where section 12, 13, 14 , 15, 16, 17, 18, 19 ,20 or 22 would apply to the disclosure of that personal information. [emphasisadded] LAW ENFORCEMENT The Ministry submits that Record 4 qualifies for exemption under section14(2)(a) of the Act . In order for a record to qualify for exemptionunder section 14(2)(a), the Ministry must satisfy each part of the followingthree part test: 1.the record must be a report; and 2.the report must have been prepared in the course of law enforcement,inspections or investigations; and 3.the report must have been prepared by an agency which has the functionof enforcing and regulating compliance with a law. [Order 200 and P-324] The word "report" is not defined in the Act. However, in order toqualify as a report, a record must consist of a formal statement or account ofthe results of the collation and consideration of information. Generallyspeaking, results would not include mere observations or recordings of fact(Order 200). Having reviewed Record 4, I am satisfied that it is a "report"for the purposes of section 14(2)(a). The Ministry submits that Record 4 was prepared in the course of aMetropolitan Toronto Police investigation into a matter in order to determine ifthe evidence warranted a prosecution under the Hate Propaganda section of the Criminal Code . I am satisfied that Record 4 was prepared in the courseof law enforcement, by the Metropolitan Toronto Police, which is an agency whichhas the function of enforcing and regulating compliance with a law, in this casethe Criminal Code . Accordingly, all parts of the test have been met. Record 4 qualifies for exemption under section 14(2)(a) of the Act , andsection 49(a) applies. SOLICITOR-CLIENT PRIVILEGE Section 19 consists of two branches, which provide the Ministry with thediscretion to refuse to disclose: 1.a record that is subject to the common law solicitor-client privilege;(Branch 1) and 2.a record which was prepared by or for Crown counsel for use in givinglegal advice or in contemplation of or for use in litigation (Branch 2). The Ministry relies on Branch 2 of the exemption with respect to thefollowing records: Records 3-1 to 3-17, 3-21 to 3-32, 3-35, 3-36 to 3-46, 7,8-1, 11-1, 11-8, 11-15 to 11-18, 11-24 to 11-26, 11-28, and 11-36 to 11-37. Arecord can be exempt under Branch 2 of section 19 regardless of whether thecommon law criteria relating to Branch 1 are satisfied. Two criteria must besatisfied in order for a record to qualify for exemption under Branch 2: 1.the record must have been prepared by or for Crown counsel; and 2.the record must have been prepared for use in giving legal advice, or incontemplation of litigation, or for use in litigation. [Order 210] The Ministry submits that all of these records were prepared by or forvarious Crown counsel for use in giving legal advice and/or in contemplation ofor for use in litigation. The Ministry argues that the records clearlydemonstrate that the police conducted a criminal investigation regarding thesale of certain videos. Various Crown counsel were involved in providing legaladvice to the police regarding their investigation, as well as to seniorMinistry officials. The Ministry submits that the memos, notes of meetings andother documentation prepared for their use are exempt from disclosure. All of these records, with the exception of Record 8-1, were prepared by orfor employees who qualify as "Crown counsel" in the employ of theMinistry. Further, almost all of these records were prepared for use in givinglegal advice. Accordingly, I am satisfied that these records, with theexception of Records 3-22, 3-44 to 3-46, 8-1, 11-15, 11-18, 11-24 to 11-26 and11-36 qualify for exemption under Branch 2 of the exemption, and section 49(a)applies. Record 8-1 is a letter to the Ontario Provincial Police, and was notprepared by or for Crown counsel. Records 3-22, 3-44 to 3-46, 11-15, 11-18,11-24 to 11-26 and 11-36 are administrative in nature and were not, in my view,prepared for use in giving legal advice or for use in litigation. Accordingly,Records 3-22, 3-44 to 3-46, 8-1, 11-15, 11-18, 11-24 to 11-26 and 11-36 do notqualify for exemption under section 19. INVASION OF PRIVACY The Ministry submits that the name, address and any information leading tothe identification of individuals (other than those acting in an officialcapacity as government officials or those for whom consent has been obtained)mentioned in the records constitutes personal information. Having reviewed the records, I am satisfied that Records 3-18 to 3-20, 5-9to 5-11, 8-1, 9-1, 9-2, 10-1, 11-3 to 11-5, 11-10, 11-15, 11-20, 11-23, 11-31 to11-33, 11-34, 11-36 and 11-38 contain the personal information of the ap
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Legislation
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FIPPA
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14(2)(a)
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21(3)(b)
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21(3)(h)
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Section 19
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Section 20
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Subject Index
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Signed by
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Holly Big Canoe
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Published
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Nov 20, 1997
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Type
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Order
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