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Document
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M-432
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Institution/HIC
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Metropolitan Toronto Police Services Board
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Summary
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NATURE OF THE APPEAL: This is an appeal under the Municipal Freedom of Information and Protection of Privacy Act (the Act ). The Metropolitan Toronto Police Services Board (the Police) received a request for access to information they had gathered between January 1, 1993 and December 1, 1993 on "groups or individuals who demonstrate". The requester indicated that the Chief of Police was reported in a Toronto newspaper as stating that the Police routinely gather such information. The Police responded by advising the requester that the existence of the records could neither be confirmed nor denied under sections 8(3) and 14(5) of the Act . The requester appealed this decision. A Notice of Inquiry was sent to the Police and the appellant. Representations were received from the Police only. DISCUSSION: REFUSAL TO CONFIRM OR DENY THE EXISTENCE OF A RECORD INVASION OF PRIVACY In order for the Police to claim the application of section 14(5) of the Act , the records, if they exist, must contain the personal information of individuals other than the appellant. "Personal information" is defined in section 2(1) of the Act , in part, as "... recorded information about an identifiable individual ..." The Police do not specifically address this issue in their submissions. However, I am prepared to accept that if records of the nature requested existed, some references in the records could be said to relate to "identifiable individuals" and, thus, they could contain personal information. Section 14(5) of the Act states: A head may refuse to confirm or deny the existence of a record if disclosure of the record would constitute an unjustified invasion of personal privacy. In Orders P-339 and P-423, issued under the provincial Freedom of Information and Protection of Privacy Act , former Assistant Commissioner Tom Mitchinson described the circumstances in which section 21(5), the equivalent of section 14(5) of the Act , might be applied by an institution: In my view, an institution relying on this section must do more than merely indicate that disclosure of the records would constitute an unjustified invasion of personal privacy. An institution must provide detailed and convincing evidence that disclosure of the mere existence of the requested records would convey information to the requester, and that the disclosure of this information would constitute an unjustified invasion of personal privacy. In their representations, the Police explain how, in their view, confirming or denying the existence of responsive records would result in an unjustified invasion of personal privacy. They state that indicating that an individual is or is not the subject of a law enforcement investigation would constitute an unjustified invasion of that individual's personal privacy. In my view, the head, by confirming that records do or do not exist, would not be confirming that an individual is or is not identifiable from the information contained in the requested records. The head is only confirming that records associated with the subject matter described by the appellant in his request do or do not exist. In this regard, I note that the appellant did not specifically mention any names in his request. Accordingly, confirmation that records responsive to the appellant's request do or do not exist, without indicating the nature of these records or the parties involved with any particular record, would not compromise the privacy interests of any individual. I, therefore, find that the head has not provided sufficient evidence to establish that disclosure of the mere existence or non-existence of responsive records would convey information to the appellant which would constitute an unjustified invasion of personal privacy. Therefore, I find the requirements of section 14(5) have not been met. LAW ENFORCEMENT I will now consider the applicability of section 8(3) of the Act in the circumstances of this appeal. This section provides: A head may refuse to confirm or deny the existence of a record to which subsection (1) or (2) applies. The first step in this analysis is to determine if section 8(1) or (2) of the Act applies. Although they do not state this explicitly, the submissions of the Police appear to claim that, if records of the nature requested existed, they would qualify for exemption under sections 8(1)(a), (b), (c), (d), (e), (g), (k) and (l) and 8(2)(a). These sections provide that: A head may refuse to disclose a record if 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; (g) interfere with the gathering of or reveal law enforcement intelligence information respecting organizations or persons; (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. 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; In order for records of the type requested, if they exist, to qualify for exemption under sections 8(1)(a), (b), (c), (d), (g) and 8(2)(a), the matter which would generate the records must satisfy the definition of the term "law enforcement" as found in section 2(1) of the Act . This provision reads: "law enforcement" means, (a) policing, (b) investigations or inspections that lead or could lead to proceedings in a court or tribunal if a penalty or sanction could be imposed in those proceedings, and (c) the cond
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Legislation
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Subject Index
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Published
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Dec 13, 1994
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Type
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Order
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