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Document
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PO-1833
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File #
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PA-990106-1
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Institution/HIC
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Ministry of the Solicitor General and Correctional Services
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Summary
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BACKGROUND: This matter stems from a fire which completely destroyed a house in 1997. After an initial investigation into the circumstances surrounding the fire by the local police, the Office of the Fire Marshal (OFM) was notified and conducted its own investigation into the matter. To assist it in its investigation, the OFM engaged the services of the Centre of Forensic Sciences (CFS). (Both the OFM and the CFS are part of the Ministry of the Solicitor General). Subsequently, the police charged an individual (the accused) with arson with intent to defraud the insurer of the property under section 435(1) of the Criminal Code . The accused was later convicted by a judge of the Ontario Superior Court of Justice, although this judgment is currently the subject of an appeal before the Court of Appeal for Ontario. In addition to the above, the owner of the house (the owner) has commenced civil proceedings in the Superior Court of Justice against the insurer, seeking payment for the loss. The insurer has denied coverage on the basis of the alleged arson and alleged fraudulent misrepresentations relating to the insurance policy, and has commenced a counterclaim against both the owner and the accused. NATURE OF THE APPEAL: The appellant, the insurer which issued the policy on the house, made a request under the Freedom of Information and Protection of Privacy Act (the Act ) to the Ministry of the Solicitor General and Correctional Services (now the Ministry of the Solicitor General) (the Ministry). The request was for access to records held by the OFM pertaining to the fire described above. The Ministry denied access to the records, stating that they "concern a matter which is currently under investigation and/or before the courts." The Ministry also cited the exemptions found in sections 14 (law enforcement), 19 (solicitor-client privilege) and 21 (invasion of privacy) of the Act . The appellant appealed the Ministry's decision to this office. This office sent a Notice of Inquiry to the Ministry and the appellant setting out the issues in the appeal. Representations were received from both parties. A Supplemental Notice of Inquiry was later sent to the Ministry and the appellant, in response to which representations were received from the Ministry. The Supplemental Notice of Inquiry sought representations on the impact of previous orders of this office on the application of the law enforcement exemption in the circumstances of this appeal. RECORDS: During the inquiry the appellant confirmed that she was already in possession of a number of responsive records and, therefore, she agreed that these records were no longer at issue in this appeal. These records are described as follows: Records 12-20, OFM Fire Investigation Report dated April 22, 1997 (and duplicate Records 170-178) Record 139, undated typewritten statement of firefighter Records 140-141, handwritten statement of firefighter dated February 28, 1997 Record 142, undated handwritten statement of firefighter Record 143, handwritten statement of firefighter dated March 3, 1997 Records 144-145, undated handwritten statement of firefighter Records 157-169, local police occurrence report and follow-up reports Records 90-106 were described in the Report of Mediator as a March 29, 1999 follow-up report. It is actually dated March 29, 1997 and is not a follow-up report, but a handwritten version of the Fire Investigation Report which forms Records 12-20. Because Records 90-106 are identical in content to Records 12-20, I have concluded that Records 90-106 are also no longer at issue in this appeal. The records remaining at issue include documents prepared by the OFM including an engineering report, several fire investigation reports, major occurrence preliminary information forms, a red book entry form, and handwritten notes. The records also include correspondence to the OFM from insurance adjusters, and from the appellant's client, as well as correspondence from the OFM to the local fire department. Also included are a summons to witness to, and a witness statement of, an OFM engineer, house floor plans, a chemical resistence guide. Finally, the records include CFS reports and a witness statement of a CFS chemist, and local fire department reports. DISCUSSION: LAW ENFORCEMENT Law enforcement report: section 14(2)(a) Introduction The Ministry submits that Records 1-9, 10-11, 70-71, 111, 112, 130-131, 132-133, 136, 137-138, 147-148, 151-152, 179-180, 181-182 and 187-188 qualify for exemption under section 14(2)(a) of the Act . These records are generally described as an engineering report, several fire investigation reports, major occurrence preliminary information forms and a red book entry form. Section 14(2)(a) of the Act reads: A head may refuse to disclose a record, 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; 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-part test: the record must be a report; and the report must have been prepared in the course of law enforcement, inspections or investigations; and the report must have been prepared by an agency which has the function of enforcing and regulating compliance with a law [Orders 200 and P-324]. Assistant Commissioner Tom Mitchinson discussedpart three of the test at some length in Order P-352. That case dealt with a request to the Archives of Ontario for access to a 1976 report prepared by the Inspection and Standards Branch of the Ministry of Correctional Services concerning alleged inappropriate staff conduct at the Grandview Training School for
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Legislation
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FIPPA
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14(1)(a)
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14(1)(b)
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14(2)(a)
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21(1)(f)
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21(2)(d)
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Section 19
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Subject Index
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Signed by
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David Goodis
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Published
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Nov 10, 2000
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Type
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Order
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