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Document
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MO-1433-F
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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 information concerning an individual (the affected person) who had previously been employed by the Police, and was currently employed by the requester, a public institution. The requester specified that it wanted access to any records relating to allegations and investigations of misconduct by the affected person. It also referred to its belief that disclosure of the documents would be in the public interest, and that public scrutiny and the promotion of health and safety were factors supporting the disclosure of the information in the circumstances. The Police's response identified that the records at issue contained "personal information" as defined by the Act . The Police went on to refer to the wording and/or provisions of the following components of the mandatory personal information exemption claim outlined in section 14 of the Act : section 14(3)(b) - (presumed unjustified invasion - law enforcement) section 14(3)(d) - (employment or educational history) that certain identified factors - (section 14(2)(a) (public scrutiny) and 14(2)(b) (promote health and safety)) could not be taken into account where disclosure is presumed to constitute an unjustified invasion of privacy that no "compelling" circumstances outweighed the purpose of the section 14 exemption. The requester (now the appellant) appealed the Police's decision. A preliminary issue was whether the request was a valid request under Part 1 of the Act , and in Interim Order MO-1353-I, I found that it was. I allowed the appeal to proceed (subject to certain conditions which have been met), and I also determined that the Police could raise additional discretionary exemptions, if they chose to, within a limited time period. The Police responded with a second decision letter within the specified time frame, and advised the appellant that "the information you requested is excluded under the [ Act ] pursuant to section 52(3)". The Police referred specifically to sections 52(3)1 and 52(3)3 in their decision letter. Upon receipt of this decision, the current appeal was opened and immediately transferred to the inquiry stage. I sent a Notice of Inquiry to the Police and the affected person initially, and received representations in response. The affected person confirmed that he did not consent to disclosure of the record. I then sent a copy of the Notice of Inquiry, along with the Police's representations, to the appellant. The appellant provided representations in response to the Notice. The representations identified the following: the appellant disputed the application of section 52(3) to the records; the appellant acknowledged that the records contain personal information as defined by section 2(1) of the Act ; the appellant acknowledged that the personal information consists of the "employment history" of the affected person, and that the disclosure of this information would be presumed to constitute an unjustified invasion under section 14(3) of the Act ; the appellant submitted extensive representations on the application of section 16 of the Act , to override the application of the section 14 exemption claim. I then sent the non-confidential portions of the appellant's representations relating to section 16 to the Police and the affected person for reply. Both of these parties provided representations in response. RECORDS: The records at issue in this appeal consist of approximately 2,200 pages and include investigation reports, witness statements, correspondence, police officer's notes, exhibits, newspaper articles and various other related documentation. DISCUSSION: JURISDICTION The Police take the position that the records fall within the parameters of paragraphs 52(3)1 and 3 of the Act . Sections 52(3) and (4) read, in part, as follows: (3) Subject to subsection (4), this Act does not apply to records collected, prepared, maintained or used by or on behalf of an institution in relation to any of the following: 1. Proceedings or anticipated proceedings before a court, tribunal or other entity relating to labour relations or to the employment of a person by the institution. ... 3. Meetings, consultations, discussions or communications about labour relations or employment-related matters in which the institution has an interest. (4) This Act applies to the following records: 1. An agreement between an institution and a trade union. 2. An agreement between an institution and one or more employees which ends a proceeding before a court, tribunal or other entity relating to labour relations or to employment-related matters. 3. An agreement between an institution and one or more employees resulting from negotiations about employment-related matters between the institution and the employee or employees. 4. An expense account submitted by an employee of an institution to that institution for the purpose of seeking reimbursement for expenses incurred by the employee in his or her employment. Section 52(3) is record-specific and fact-specific. If this section applies to a specific record, in the circumstances of a particular appeal, and none of the exceptions listed in section 52(4) are present, then the record is excluded from the scope of the Act . In order for the record to fall within the scope of section 52(3)1, the Police must establish that: the records were collected, prepared, maintained or used by the Police or on its behalf; and this collection, preparation, maintenanc
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Legislation
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MFIPPA
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14(1)
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52(3)1
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52(3)3
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Section 16
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Subject Index
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Published
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May 31, 2001
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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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