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Document
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MO-1698
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Institution/HIC
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Toronto Police Services Board
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Summary
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NATURE OF THE APPEAL: The appellant wrote to the Toronto Police Services Board (the Police) seeking access to his "own personal information that may be contained on any Canadian Police Information Centre [CPIC] records" under the Municipal Freedom of Information and Protection of Privacy Act (the Act ). The appellant later wrote to the Police stating that he was seeking information about himself that is available "through the Police Reference Check Program." The Police identified a two-page CPIC printout and advised the requester that they were denying access to it on the basis of the exemptions at section 38(a) in conjunction with section 8(1)(l), which applies to a record that could reasonably be expected to facilitate the commission of an unlawful act. Regarding the police reference check information, the Police stated: The Reference Check program, instituted pursuant to the passage of Bill C-6, is conducted under Memoranda of Understanding between the [Police] and specific agencies. Eligible agencies, for the purposes of the memorandum are defined as "organizations including those funded or licensed by the Ministry of Community and Social Services who are providing services to children and vulnerable adults." Access cannot be provided to the Reference Check Program [information] by individuals pursuant the parameters of the Memoranda . . . The appellant then appealed the decision of the Police to this office. During the mediation stage of the appeal, the Police issued a supplementary decision to the appellant, stating: Since you have not previously had a police reference check conducted on yourself by a registered agency, access cannot be provided to the record as such record does not exist. The appellant advised the mediator that he takes issue with the position of the Police that there are no police reference check records relating to him. Mediation was not successful in resolving all of the issues in the appeal, and the appeal was streamed to the adjudication stage of the process. I sent a Notice of Inquiry setting out the issues in the appeal to the Police, who provided representations in response. I then sent the non-confidential representations of the Police, together with the Notice of Inquiry, to the appellant, who in turn provided representations. RECORDS: The record at issue in this appeal is a two-page CPIC printout. DISCUSSION: TIMING OF REPRESENTATIONS In my cover letter to the Police enclosing a Notice of Inquiry, I stated that the representations were due June 3, 2003. In accordance with this office's usual practice, I also stated: Should your representations not be received by the date specified in this letter, the decision making process will proceed, and an order may be issued in the absence of these representations. The Police's representations are dated June 5, 2003, and I received them on June 9, 2003. In his representations, the appellant states: . . . I am not aware that any extensions were granted to the [Police] and I would appreciate an explanation. In a subsequent letter to me, the appellant implies that I should not take into account the representations of the Police in my decision-making process. The purpose of the paragraph set out above is to ensure that parties are aware of the importance of providing their representations on time, and that if they fail to do so, they risk the possibility of an order being issued in the absence of their representations. I do not accept the appellant's position that, because I received the representations six days late, I should not consider them. Under the Act , an adjudicator has the discretion to consider late material, taking into account all of the circumstances, including any prejudice that may accrue to either party. To act otherwise and take an overly technical approach, in my view, would be contrary to principles of fairness and natural justice. This approach is consistent with this office's Code of Procedure , which states at sections 2.03 and 2.04: 2.03 A failure to follow any procedure in this Code does not for that reason alone render an appeal, or any step in an appeal, invalid. 2.04 The IPC may in its discretion depart from any procedure in this Code where it is just and appropriate to do so. Here, the appellant did not suffer any significant prejudice by the relatively short delay in the process. On the other hand, should I not consider the Police's representations, it may put me in a position of having to reject the exemption claim for lack of evidence, leading to an order to disclose the record, where I might reach a different result should I consider that material. In my view, the potential prejudice to the Police clearly outweighs any prejudice to the appellant. Accordingly, I do not accept the appellant's request that I not consider the Police's representations. PERSONAL INFORMATION The first issue for me to determine is whether the records contain personal information and, if so, to whom that information relates. Under section 2(1) of the Act , "personal information" is defined, in part, to mean recorded information about an identifiable individual. The Police submit: The personal information contained in the record comprises the appellant's name, date of birth, and unique identifiers. The appellant makes no specific submissions on this point. I agree with the Police that the record contains the appellant's personal information, since it contains information that is clearly "about" him, including his name, date of birth and unique identifiers. RIGHT OF ACCESS TO ONE'S OWN PERSONAL INFORMATION/LAW ENFORCEMENT Section 36(1) of the Act gives individuals a general right of access to their own personal information held by an institution. Section 38 provides a number of exemptions from this right. Under section 38(a), an institution has the discretion to deny an individual access to their own personal information where the exemptions in sections 6, 7, 8, 8.1, 9, 10, 11, 12, 13 or 15 would apply to the disclosure of that personal information. In this case, the Police rely on section 38(a) in conjunction with section 8(1)(l). The latter section reads: A head may refuse to disclose a record where the disclosure could reasonably be expected to, facilitate the commission of an unlawful act or hamper the control of crime. To establish the application of section 8(1)(l), the Police must provide "detailed and convincing" evidence to establish a "reasonable expectation of harm". Evidence amounting to speculation of possible harm is not sufficient [Order PO-2037, upheld on judicial review in Ontario (Attorney General) v. Goodis (May 21, 2003), Toronto Doc. 570/02 (Ont. Div. Ct.), Ontario (Workers' Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464 (C.A.)]. The Police submit: Protecting computerized databases from unlawful penetration is an ever present and growing concern. The query form
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Legislation
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Subject Index
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Published
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Oct 21, 2003
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Type
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Order
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