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Document
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P-106
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File #
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Appeal 880232
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Institution/HIC
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Ministry of the Solicitor General
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Summary
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O R D E R This appeal was received pursuant to subsection 50(1) of the Freedom of Information and Protection of Privacy Act, 1987 (the " Act ") which gives a person who has made a request for access to a record under subsection 24(1) or a request for access to personal information under subsection 48(1) a right to appeal any decision of a head under the Act to the Commissioner. The facts of this case and the procedures employed in making this Order are as follows: 1. On June 16, 1988, the Ministry of the Solicitor General (the "institution") received a request from the appellant for access to all files on the appellant in the OPP Criminal Intelligence Records from 1967-1988 inclusive. 2. On June 21, 1988, the institution refused to confirm or deny the existence of a record that would answer the appellant's request, pursuant to subsection 14(3) of the Act , which provides that: "A head may refuse to confirm or deny the existence of a record to which subsection (1) or (2) apply". Broadly speaking, subsections 14(1) and (2) deal with records relating to law enforcement. 3. On July 19, 1988, the requester appealed the decision of the institution. I gave notice of the appeal to the institution. 4. Between July 19, 1988 and September 12, 1988, an Appeals Officer investigated the matter with a view to settlement, but in the circumstances of this appeal, no settlement was obtained. 5. On September 12, 1988, notice that I was conducting an inquiry to review the decision of the head was sent to the institution and the appellant. Enclosed with each notice letter was a report prepared by the Appeals Officer, intended to assist the parties in making their representations concerning the subject matter of the appeal. The Appeals Officer's Report outlines the facts of the appeal and sets out questions which paraphrase those sections of the Act which appear to the Appeals Officer, or any of the parties, to be relevant to the appeal. This report indicates that the parties, in making their representations to me, need not limit themselves to the questions set out in the report. 6. Written representations were received from the appellant and the institution. The purposes of the Act as set out in section 1 should be noted at the outset. Subsection l(a) provides a right of access to information under the control of institutions in accordance with the principles that information should be available to the public and that necessary exemptions from the right of access should be limited and specific. Subsection l(b) sets out the counter-balancing privacy protection purpose of the Act . This subsection provides that the Act should protect the privacy of individuals with respect to personal information about themselves held by institutions and should provide individuals with a right of access to their own personal information. Further, section 53 of the Act provides that where a head refuses access to a record, the burden of proof that the record falls within one of the specified exemptions in this Act lies upon the head. The issues arising in this appeal are as follows: A. Could disclosure of a record, such as the one requested, be refused under the provisions of subsection 14(1) or (2)? B. If the answer to Issue "A" is in the affirmative, whether the head has properly exercised his discretion under subsection 14(3) to refuse to confirm or deny the existence of the record requested. C. Whether there has been any procedural or substantive error in the decision-making process. Before dealing with the above-noted issues, it is important to emphasize at the outset that the appellant's request for record(s) is a narrow one and confined only to "all files on the appellant in the OPP Criminal Intelligence Records from 1967 1988 inclusive." The request does not extend to all records relating to the appellant in the custody or under the control of the institution. Thus, the institution's refusal to confirm or deny the existence of such a record relates only to the appellant's narrow request and does not extend to records, if any, relating to the appellant which do not fall within the category of "OPP Criminal Intelligence Records." Issue A: Could disclosure of a record, such as the one requested, be refused under the provisions of subsections 14(1) or (2)? Subsections 14(1) and (2) read as follows: 14.-(1) A head may refuse to disclose a record where the disclosure could reasonably be expected to, (a) interfere with a law enforcement matter; (b) interfere with an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result; (c) reveal investigative techniques and procedures currently in use or likely to be used in law enforcement; (d) disclose the identity of a confidential source of information in respect of a law enforcement matter, or disclose information furnished only by the confidential source; (e) endanger the life or physical safety of a law enforcement officer or any other person; (f) deprive a person of the right to a fair trial or impartial adjudication; (g) interfere with the gathering of or reveal law enforcement intelligence information respecting organizations or persons; (h) reveal a record which has been confiscated from a person by a peace officer in accordance with an Act or regulation; (i) endanger the security of a building or the security of a vehicle carrying items, or of a system or procedure established for the protection of items, for which protection is reasonably required; (j) facilitate the escape from custody of a person who is under lawful detention; (k) jeopardize the security of a centre for lawful detention; or (l) facilitate the commission of an unlawful act or hamper the control of crime. (2) A head may refuse to disclose a record, (a) that is a report prepared in the course of law enforcement, inspections or investigations by an agency which has the function of enforcing and regulating compliance with a law; (b) that is a law enforcement record where the disclosure would constitute an offence under an Act of Parliament; (c) that is a law enforcement record where the disclosure could reaso
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Legislation
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Subject Index
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Signed by
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Sidney Linden
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Published
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Oct 24, 1989
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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