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Document
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MO-1703
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Institution/HIC
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Hamilton Police Services Board
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Summary
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NATURE OF THE APPEAL: The Hamilton Police Services Board (the Police) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to information relating to a fatal motor vehicle accident. The requester, who is represented by counsel, is both the widow of the victim of the accident as well as the executrix of his estate. The Police granted partial access to certain responsive records, and denied access to the remainder, based on a number of exemptions in the Act . The Police denied access to two types of records (30 responsive photographs and the Fatal Collision Reconstruction Report (the reconstruction report)) on the basis of the exemption found in section 15(a) (information published or available). The Police indicated that the photographs could be purchased from the Identification Branch of the Police for $11.00 each. With respect to the reconstruction report, the Police referred the requester to the Motor Vehicle Collision Reconstruction Team of the Police, and attached a fee schedule to the decision letter. The fee schedule listed the different fees payable for the various parts of the reconstruction report, and identified that the full reconstruction report was available for a fee of $2,500. The requester's counsel (now the appellant) appealed the decision, and subsequently confirmed that he was appealing the decision that section 15(a) applied to the photographs and to the reconstruction report. During the mediation stage of this appeal, Senior Adjudicator David Goodis of this office issued Order MO-1573, which dealt with issues similar to the ones raised in this appeal. In that appeal, access to an accident reconstruction report was denied on the basis of section 15(a), and the institution in that appeal (the Niagara Regional Police Services Board) also identified that the reconstruction report could be obtained for a charge of $2,500. After extensively reviewing the issues in that appeal, Senior Adjudicator Goodis upheld the Police's position that section 15(a) applied to the reconstruction report. The parties in this appeal were referred to that Order during the processing of this appeal. Mediation did not resolve the issues, and a Notice of Inquiry, summarizing the facts and issues in this appeal, was sent to the Police. The Police provided representations on the issues, and the Notice of Inquiry, along with the non-confidential portions of the Police's representations, was sent to the appellant. The appellant provided representations in response, which were in turn shared with the Police. The Police then provided reply representations. The issues I must decide in this appeal are whether the discretionary exemption found in section 15(a) applies to the records and, if so, whether the Police properly exercised their discretion in applying that exemption in the circumstances of this appeal. The records at issue are 30 photographs and the reconstruction report. DISCUSSION: RECORDS CURRENTLY AVAILABLE TO THE PUBLIC Introduction Section 15(a) reads: A head may refuse to disclose a record if, the record or the information contained in the record has been published or is currently available to the public; As identified above, Senior Adjudicator Goodis recently had to decide whether section 15(a) applied to records similar to the ones at issue in this appeal (a reconstruction report) when a police service was charging $2,500 for access to the report (Order MO-1573). Senior Adjudicator Goodis reviewed the history and application of section 15(a) in considerable detail. Concerning the section itself, he stated: Most freedom of information statutes in Canada permit the government to refuse to disclose information that is available to the public. As stated by McNairn and Woodbury in Government Information: Access and Privacy (DeBoo: Toronto, 1989) at p. 2-28: Someone who is seeking information for which there is already a system of public access in place will normally be required to proceed in accordance with the rules of that system. A person who puts in an access request for a deed to property or a list of directors in a company's information return, for example, will likely be instructed to visit the land or companies registry to locate and view the relevant document. A government institution is unlikely to undertake a search for such a document when it has provided the facility for that to be done by members of the public or their representatives. If copies of a deed or a company return, once located, are ordered from the public office, charges will be levied in accordance with the scale of fees under the land registration or companies legislation, rather than that under the access legislation. The authority for diverting the requester to another access system in these circumstances is fairly clear under the Nova Scotia, Ontario and Saskatchewan Acts. While the other access statutes are silent on this matter, they should not be interpreted as creating a right to use their access processes in preference to resorting to the public record. In other words, the existing systems for access to particular kinds of information will take priority even if not as convenient or cost effective for the requester . . . In Ontario, this office has stated that in order for the section 15(a) "publicly available" exemption to apply, the institution must establish that the record is available to the public generally, through a regularized system of access, such as a public library or a government publications centre [see Orders P-327, P-1316, P-1387]. In Order P-1316, former Commissioner Tom Wright expanded on the meaning of the phrase "regularized system of access": . . . [I]n order to establish that a regularized system of access exists for the computer tape, the Ministry must demonstrate that a system exists, the tape is available to everyone and there is a pricing structure which is applied to all who wish to obtain the information. The term "regularized system of access" has been found to apply to a variety of records and circumstances, as follows: unreported court decisions (Order P-159); statutes and regulations, and excerpts therefrom (Orders P-170, P-1387); property assessment rolls (P-1316); septic records (MO-1411); and property sale data (PO-1655). In many cases, the exemption was found to apply, despite the fact that the alternative source included a fee system that was different from the fees structure under the Act (see Orders P-159, P-1316, P-1387; MO-1411; PO-1655). In Order P-1387, former Commissioner Wright considered the appellant's argument that the exemption should not apply due to the higher cost of access to the records. In rejecting this argument, the former Commissioner stated: The appellant's representations address the issue of cost as a factor to be considered in examining the application of section 22(a) of the Act . He states that the Act supports the proposition that any impediments to making law available, such as costs, should be restricted as much as possible. The appellant submits that where a government institution itself has entered into the profit-driven market for the sale of its informat
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Legislation
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Subject Index
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Published
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Oct 30, 2003
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Type
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Order
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