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Document
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M-449
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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 my Final Order disposing of the one remaining issue which was initially addressed in Interim Order M-384. In that order, I directed the Metropolitan Toronto Police Services Board (the Police) to provide written representations on the factors they considered in exercising discretion to withhold portions of Records 2 and 4 from the appellant pursuant to section 38(b) of the Municipal Freedom of Information and Protection of Privacy Act (the Act ). The Police responded to Interim Order M-384, but did not provide representations concerning their exercise of discretion. This final order will address the Police's decision not to exercise discretion in the circumstances of this appeal, as well as render a final decision with respect to Records 2 and 4. To facilitate an understanding of this decision, I have included some background information relating to Interim Order M-384. BACKGROUND: Interim Order M-384 dealt with a request for copies of all records from the Police relating to the death of the appellant's husband. In that order, following my review of the five records and nine photographs at issue, I found that the information contained in Records 2 (a supplementary report) and 4 (police officer's notes) satisfied the definition of personal information, and that the information related to both the deceased and the appellant. On this basis, I found that both records were to be analyzed under section 38(b) of the Act . In their decision letter, the Police claimed that sections 14 and 38(b) applied to the records at issue in this appeal. However, it was not clear from the letter or the records to which portions of the records each section had been applied. Although requested to do so, the Police did not submit representations to the Commissioner's office in support of the exemptions claimed. In the absence of representations by the Police, and in view of my determination that Records 2 and 4 be analyzed under section 38(b), which, as I indicated above, is a discretionary exemption, I ordered the Police to provide representations on their decision to exercise discretion in favour of not disclosing the information at issue. DISCUSSION: In responding to Interim Order M-384, the Police indicated that they disagreed with my finding that Records 2 and 4 must be analyzed under section 38(b). They stated that they applied section 14 to exempt the portions of these two records which remain at issue. Their response implies that they continue to rely on section 14. The Police were advised by this office that their representations were incomplete with respect to the exercise of discretion and were provided with an explanation of the basis for the analysis of records under section 38 as opposed to section 14. The Police were again asked to provide representations on their exercise of discretion. The Police responded to this request. In their response, they state: This institution does not accept the "approach" developed for the convenience of appeals officers at the IPC. We continue to be guided by the wording of the Municipal Freedom of Information and Protection of Privacy Act . In my view, the response of the Police indicates a fundamental difference of opinion regarding the approach which I adopted in Interim Order M-384 to analyze the personal information contained in the records. My evaluation was based on the approach adopted in Order M-352 and followed in many subsequent orders. The approach taken by the Commissioner's office with respect to the analysis of personal information was set out in considerable detail in Order M-352. In that order, Inquiry Officer John Higgins reviewed the statutory context under which an analysis of personal information in a record should be made. Following his discussion of the purpose of both the section 14 and 38 exemptions, Inquiry Officer Higgins stated that: In order to give effect to the legislature's intention to distinguish between requests for an individual's own personal information and other types of requests, the Commissioner's office has developed an approach for determining whether Part I or Part II of the Act applies. In that approach, the unit of analysis is the record , rather than individual paragraphs, sentences or words contained in a record. In that order, Inquiry Officer Higgins discussed at some length the legislature's purpose for creating a distinction in the Act between an individual's own personal information and that of another individual. He stated that the rationale is to emphasize the special nature of requests for one's own personal information. In recognizing that individuals have a greater right of access to their own personal information, the Act gives institutions the power to grant access in situations where responsive records may also contain the personal information of other individuals. Inquiry Officer Higgins concluded that: In my view, the record-by-record analysis best reflects the special character of requests for records containing one's own personal information, and it provides a practical, uniform procedure which all institutions can apply in a consistent manner. As a result of their disagreement with the approach taken in Interim Order M-384, the Police indicated that, never having considered the application of section 38(b) to the portions of the records which had been severed, they were not prepared to detail an exercise of discretion which never took place. In my view, the Police's response raises several issues: 1. The Police disagree with the approach which the Commissioner's office has consistently taken to address this issue. 2. As a result of this disagreement, the Police have declined to exercise their discretion in this case. With respect to the first issue, if the Police do not agree with a decision of the Commissioner, appropriate legal mechanisms exist to challenge such a determination. In the absence of disputing the decision in this manner, the Police are required to comply with the order. The second issue is more complex. The Police indicate that since the analysis of the personal information at issue was originally undertaken under section 14, they cannot now, in retrospect, provide representations on factors relating to the exercise of discretion under section 38(b) that were not originally considered. In my view, it is implicit that if the original decision was m
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Legislation
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Subject Index
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Published
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Jan 24, 1995
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Type
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Order – Final
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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