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Document
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P-1337
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File #
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P_9600293
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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, represented by the Office of the Public Guardian and Trustee,made a request under the Freedom of Information and Protection of PrivacyAct (the Act ) to the Ministry of the Attorney General (theMinistry). The request was for access to information relating to aninvestigation of a police shooting. The investigation was conducted in the fallof 1995 by the Ministry's Special Investigations Unit (the SIU). The appellantwas the victim of the shooting, and was severely injured as a result of a bulletwound to his head. The appellant's injuries have left him mentally incapable ofmanaging his property and financial affairs, and the Office of the PublicGuardian and Trustee is his statutory guardian of property. In this order,references to actions taken by the appellant are to be understood to be actionstaken by the Office of the Public Guardian and Trustee on the appellant'sbehalf. Specifically, the appellant sought access to: the findings and conclusions of the investigation statements of witnesses (including police officers) toxicology reports ballistic reports accident reconstruction reports forensic identification reports photographs. The Ministry granted partial access to the information requested. Access tothe remaining information was denied under the following exemptions: law enforcement - section 14(2)(a) invasion of privacy - section 21 The appellant appealed the Ministry's decision. During mediation of theappeal, the appellant withdrew his request for the following records: the report by the Director of the SIU the witness statements provided by police officers the bloodstain analysis and ballistics report the technical collision report the toxicology and chemistry report the case submission list and exhibit list. The appellant also indicated that although he was not interested in pursuingaccess to the Final Investigative Report, he was interested in obtaining some ofthe documents listed in the appendix of the report. The Ministry issued aseparate decision letter in respect of these items, and this decision is thesubject of a second appeal by the appellant and will not be considered in thisorder. A Notice of Inquiry was sent to the Ministry, the appellant, independentwitnesses, ambulance attendants, and civilian employees of the police. Theapplication of sections 49(a) and (b) were included as issues in the Notice ofInquiry, as the records appeared to contain the personal information of theappellant. Representations were received from the Ministry, the appellant, anda representative of the witnesses who are employed by the police. RECORDS: The records remaining at issue in this appeal consist of: witness statements provided by individuals other than police officers list of photographs photographs Partial access was granted to both the list of photographs and the actualphotographs. Access to the witness statements, however, has been denied infull. DISCUSSION: DISCRETION TO REFUSE THE REQUESTER'S OWN INFORMATION Personal information is defined in section 2(1) of the Act , in part,as "recorded information about an identifiable individual." Havingreviewed the records, I am satisfied that they all contain the personalinformation of the appellant. Section 47(1) of the Act allows individuals access to their ownpersonal information held by a government institution. However, section 49 setsout exceptions to this right. LAW ENFORCEMENT Under section 49(a) of the Act , the Ministry has the discretion todeny access to an individual's own personal information in instances wherecertain exemptions would otherwise apply to that information. Section 49(a)states as follows: 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 22would apply to the disclosure of that personal information. [Emphasis added] The Ministry submits that section 14(2)(a) applies to parts of Record 29,which is the SIU Investigation "Photographic Book" and is comprised ofthe list of photographs and the photographs themselves. Section 14(2)(a)states: A head may refuse to disclose a record, that is a report prepared in the course of law enforcement, inspections orinvestigations by an agency which has the function of enforcing and regulatingcompliance with a law. In order for a record to qualify for exemption under section 14(2)(a) of the Act , the Ministry must satisfy each part of the following three-parttest: 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] The Ministry submits that Record 29 was prepared by the TechnicalIdentification Section of the Ontario Provincial Police at the request of theSIU. This record is an appendix to and forms an integral part of the SIU'sFinal Investigative Report. The Final Investigative Report describes the eventsoccurring before and after the shooting, sets out the details of theinvestigation, outlines the investigator's comments and outlines the conclusionhe reached regarding the conduct of the police. In my view, the FinalInvestigative Report, including the appendices, consist of a formal account ofthe results of the consideration of the information related to the incident. Onthis basis, I find that the Final Investigative Report, with appendices,constitutes a "report" for the purposes of section 14(2)(a) of the Act , and part one of the test has been met. Turing to part two of the test, the SIU is established by section 113 of the Police Services Act and is charged with the investigation of "...the circumstances of serious injuries and deaths that may have resulted fromcriminal offences committed by police officers" (section 113(5)). TheMinistry states that, in the event of such an incident, an independentinvestigation is conducted by the SIU investigators with a view to determiningwhether any police officer may have committed a criminal offence in thecircumstances. At the conclusion of the investigation, a brief is submitted tothe Director of the SIU for review and determination. If reasonable groundsexist, the Director may cause an information to be laid against a police officerin connection with the matters investigated and refer such an inform
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Legislation
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FIPPA
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14(2)(a)
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21(1)(a)
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21(3)(b)
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49(b)
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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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Feb 03, 1997
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Type
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Order
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