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M-409

Document		M-409


Institution/HIC		Port Hope Police Services Board


Summary		NATURE OF THE APPEAL: This is an appeal under the Municipal Freedom of Information and Protection of Privacy Act (the Act ). The Port Hope Police Services Board (the Police) received a request for access to a copy of a report concerning an investigation by the Chief of Police into an incident which occurred in December 1992 (the report). The requester indicated that the report was presented to the Police at a Police Services Board meeting on April 7, 1993. The Police granted access to those portions of the report that related to the requester. Access to the remainder of the document was denied under section 14(1) of the Act . The requester appealed this denial of access. A Notice of Inquiry was provided to the Police, the appellant and an individual who was involved with the incident described in the report (the affected person). As it appeared that some of the information at issue might relate to the appellant as well, the Police were asked to comment on the applicability of the exemption provided by section 38(b) of the Act . Representations were received from counsel acting on behalf of both the Police and the affected person. In these representations, counsel raised sections 6(1)(b) and 7(1) of the Act as additional exemptions which he claimed also applied to the report. The raising of additional exemptions at a late stage in the appeals process will be addressed as a preliminary matter below. In summary, the Police now rely on the following exemptions to deny access to those portions of the report which have not been disclosed: closed meeting - section 6(1)(b) advice or recommendations - section 7(1) invasion of privacy - sections 14(1) and 38(b) DISCUSSION: PRELIMINARY MATTER THE RAISING OF ADDITIONAL DISCRETIONARY EXEMPTIONS LATE IN THE APPEALS PROCESS By the Police On April 19, 1994, the Commissioner's office provided the Police with a Confirmation of Appeal which indicated that an appeal from the decision of the Police had been received. The Confirmation of Appeal also indicated that, based on a policy adopted by the Commissioner's office, the Police would have 35 days from the date of this correspondence (i.e. May 25, 1994) to raise any additional discretionary exemptions not claimed in the decision letter. No additional exemptions were raised during this period. On August 22, 1994, in response to the Notice of Inquiry, counsel for the Police submitted representations. It was at this time that the Police raised, for the first time, the application of the discretionary exemptions provided by sections 6(1)(b) and 7(1) of the Act . The Police were then asked to comment on why these exemptions were being raised at this stage of the appeals process and why their application should be considered by the decision maker. Previous orders issued by the Commissioner's office have determined that the Commissioner has the power to control the process by which the inquiry process is undertaken (Orders P-345 and P-537). This includes the authority to set time limits for the receipt of representations and a limit on the time during which an institution can raise new discretionary exemptions not originally raised in its decision letter. In Order P-658, I set out the reasons why the prompt identification of discretionary exemptions is necessary to maintain the integrity of the appeals process. I concluded that in cases where a discretionary exemption(s) is claimed late in the appeals process, a decision maker has the authority to decline to consider the discretionary exemption(s). In the circumstances of that case, the institution gave no explanation nor did it advance any "extenuating circumstances" which may have justified the four-month delay in raising the additional discretionary exemptions. I adopt this approach for the purposes of this appeal. In his supplementary representations addressing the late raising of the exemptions provided by sections 6(1)(b) and 7(1), counsel for the Police provides three reasons as to why I should now consider the application of these exemptions. I will deal with each of these in turn. (I will consider the raising of these exemptions by the affected party in my discussion which follows). Counsel for the Police acknowledges that the Police were aware of the notification provided in the Confirmation of Appeal giving them until May 25, 1994 to claim discretionary exemptions. However, counsel points to the covering letter that accompanied the Notice of Inquiry dated July 28, 1994 as providing the rationale for the late raising of these exemptions. Among other things, this letter stated that "If you believe that there are any additional factors which are relevant to this appeal, please refer to them." While I appreciate that there may be some ambiguity regarding the scope of this statement, in my view it is clear that it is not an invitation to raise additional discretionary exemptions in submissions. This matter was specifically dealt with in the Confirmation of Appeal and counsel acknowledges this fact. Counsel's second point is that Order P-658 is distinguishable from the present appeal. He notes that Order P-658 referred to the Notice of Inquiry giving the institution 35 days from the date of the Notice to claim any discretionary exemptions. Counsel indicates that, in the present appeal, the Notice of Inquiry provided the Police with 22 days, extended to 25 days, to provide submissions. Counsel claims "submissions" includes the raising of additional discretionary exemptions. I can appreciate counsel's attempt to distinguish the two situations. However, in both P-658 and the present appeal the relevant facts and timing are the same. Order P-658 resulted from an appeal filed under a pilot project in the Commissioner's office at a time during which different names were used for appeals-related documents. The Notice of Inquiry referred to in Order P-658 is essentially the same document, setting out the same information and time periods, as the Confirmation of Appeal in the present case. I understand counsel's confusion. However, this point is without merit. Counsel's third point is that the appellant is not prejudiced by the Police raising new discretionary exemptions at this time. He indicates that it is the position of the Police that the value of the information requested by the appellant does not diminish with time. I cannot agree with this submission. I note that


Legislation		MFIPPA 14(2)(f) 14(3)(f) 38(b)


Subject Index		elected official Raise or Consider Further Exemption


Published		Oct 25, 1994


Type		Order


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