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Document
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M-1055
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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: The Metropolitan Toronto Police Services Board (the Police) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to all records concerning the requester including photographs. The Police located a number of responsive records and denied access to them, either in whole or in part, under the following sections of the Act : law enforcement - section 8(1)(a) relations with other governments - section 9(1)(d) invasion of privacy - sections 14 and 38(b) The Police advised the requester that he should contact the Forensic Identification Bureau (the Bureau) to obtain copies of photographs. The requester (now the appellant) appealed the decision of the Police. During mediation, the appellant raised the issue of reasonable search. In addition, the Police issued a supplementary decision denying access to the photographs pursuant to sections 15(a) (records available to the public) and 50(2) (records available by statute, custom or practice immediately before the Act came into force) of the Act . A Notice of Inquiry was sent to the Police, the appellant and a number of individuals whose interests may be affected by disclosure of the record (the affected persons). Because the records appeared to contain the appellant's personal information and the Police relied on sections 8, 9 and 15 to deny access, the application of section 38(a) (deny requester's own information) was raised in the Notice of Inquiry. In their representations, the Police state that section 8(1)(a) was claimed in error for portions of pages 58 and 59 and they have disclosed this information to the appellant. The Police now rely solely on section 38(b) to exempt the remaining information on these pages. RECORDS: The records provided to this office by the Police consist of Occurrence Reports, Supplementary Reports, C.P.I.C. printouts, Records of Arrest, Supplementary Records of Arrest, a Warrant for Witness, Supplementary Records of Appearance Notice and General Occurrence Reports. The Police did not provide copies of the photographs responsive to the appellant's request. DISCUSSION: JURISDICTION Pages 2-17 of the records relate to the investigation of an incident in which the appellant was the alleged victim. They consist of Records of Arrest, Police Reports, C.P.I.C. information and a Warrant for a Witness. I have carefully reviewed these pages and I find that I have no jurisdiction under the Act to consider them. PREVIOUS CUSTOM OR PRACTICE The Police have relied on section 50(2) and section 15(a) to deny access to the photographs. Section 50(2) states: This Act shall not be applied to preclude access to information that is not personal information and to which access by the public was available by statute, custom or practice immediately before the 1st day of January, 1991. In their representations, the Police state that the photographs are available to the members of the public from the Bureau. The appellant has objected to the fact that the photographs were not disclosed to him under the Act . Former Commissioner Sidney B. Linden addressed the application of section 63(2), the provincial equivalent of section 50(2) of the Act , in Orders 187 and 217. He stated: In general, the thrust of the Act is to promote open government; however, in cases where prior access practices were perhaps not as well thought out as they should have been, I do not believe that subsection 63(2) of the Act should be invoked in order to perpetuate such practices. Former Commissioner Linden made these remarks in the context of an appeal where the institution had reconsidered its access practices prior to the Act coming into force and determined that more restricted access to certain kinds of information was more appropriate in light of the legitimate restrictions to access contained in the Act . I agree with former Commissioner Linden's remarks and I find that section 50(2) of the Act may not be invoked to support access practices which may not be in accordance with the purposes of the Act . Section 50(2) allows access mechanisms for information, other than personal information, which existed prior to the Act coming into force, to continue. It cannot be used by an institution to avoid its obligations under the Act . In their representations and in discussions with the Appeals Officer, the Police have not confirmed that the appellant will be given access to all responsive photographs through the Bureau. They have not provided me with any details about the procedure followed by the Freedom of Information Unit of the Police or the Bureau with respect to identifying responsive photographs. Nor have they provided any information with respect to how a decision is made to release photographs through the Bureau. Photographs fall under paragraph (a) of the definition of records found in section 2 of the Act . They have the potential to contain personal information of identifiable individuals other than the requester. This would invoke the application of the mandatory exemption found in section 14 or possibly the discretionary exemption found in section 38(b). The Police have not provided me with any information as to whether the photographs contain personal information. There may also be circumstances in which the Police wish to claim section 8 to exempt photographs from disclosure. The appellant has asked for photographs concerning matters in which he was involved personally, therefore, it is highly probable that the photographs would contain the appellant's personal information. The wording of section 50(2) clearly states that the section is only to be applied to information that is not personal information. Therefore, I find that section 50(2) does not apply in the circumstances of this appeal.
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Legislation
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MFIPPA
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14(3)(b)
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15(a)
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22(1)(a)
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50(2)
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9(1)(d)
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Subject Index
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Published
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Dec 30, 1997
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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