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Document
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MO-1448
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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: This is an appeal under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) from a decision of the Hamilton Police Services Board (the Police). The requester (now the appellant) sought access to information relating to a police inquiry into allegations of misconduct on the part of the appellant. In particular, the appellant requested a copy of: the complete statements of three named police officers that were provided to the Professional Standards Branch (the PSB) the statements of any other witnesses that were provided to the PSB notes or reports written by a named police sergeant or any other member of the PSB any notebook entries which relate to the appellant that were made by four named police officers for the years 1999 and 2000 The Police located records responsive to the request and denied access to all the records, relying on section 52(3) of the Act which states that the Act does not apply to certain records that relate to employment or labour relations matters. The appellant appealed the decision of the Police. I initially sent a Notice of Inquiry that set out the facts and issues in this appeal to the Police who provided representations in response. I then sent the Notice to the appellant together with the non-confidential portions of the Police submissions. The appellant also provided representations. RECORDS: The records at issue consist of witness statements, e-mails, notebook entries, and commentaries. DISCUSSION: Application of the Act The issue in this appeal is whether the records are excluded from the scope of the Act under sections 52(3) and (4). These sections state: (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: 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. Negotiations or anticipated negotiations relating to labour relations or to the employment of a person by the institution between the institution and a person, bargaining agent or party to a proceeding or an anticipated proceeding. 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: An agreement between an institution and a trade union. 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. 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. 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 an appeal, and none of the exceptions listed in section 52(4) are present, then the Act does not apply to the records. Section 52(3)1 In order for the records to qualify under section 52(3)1, the Police must establish that: the record was collected, prepared, maintained or used by the Police or on its behalf; and this collection, preparation, maintenance or usage was in relation to proceedings or anticipated proceedings before a court, tribunal or other entity; and these proceedings or anticipated proceedings relate to labour relations or to the employment of a person by the Police. Requirements 1 and 2 I have examined the records and am satisfied that they were collected, prepared, maintained or used by the Police as part of an investigation, pursuant to the Police Services Act (the PSA ), undertaken by the Police into the conduct of the appellant. In Order M-835, Assistant Commissioner Tom Mitchinson made the following findings: A disciplinary hearing conducted under section 60 of the PSA is a dispute or complaint resolution process conducted by a court, tribunal or other entity that has, by law, the power to decide disciplinary matters. As such these hearings are properly described as "proceedings" for the purpose of section 52(3)1. The Chief of Police or his delegate have the authority to conduct "proceedings," and the power, by law, to determine matters affecting legal rights and obligations, and is properly characterized as an "other entity" for the purposes of section 52(3)1. I agree with the Assistant Commissioner's reasoning and adopt it for the purposes of this appeal. I therefore find that the collection, preparation, maintenance or usage of the records was in relation to anticipated proceedings under the PSA before an "other entity," the Chief of Police or his delegate. (Orders M-840, MO-1186, MO-1349). Accordingly, the first two requirements have been met. Requirement 3 Orders of this office have concluded that proceedings under Part V of the PSA that deal with internal complaints against police officers "relate to the employment of a person by the institution" (Orders M-835, M-1347). I adopt this conclusion and find that the records relate to an internal Police inquiry into the conduct of the appellant, a police officer with the Police. As such, the records relate to the employment of a person by the Police. Assistant Commissioner Mitchinson found in Order P-1618 that the requirements under section 65(6)1 [the provincial equivalent to section 52(3)1] are "time sensitive." He concluded that in order to meet the requirements, it must be established that the proceedings or anticipated proceedings referred to are current or are in the reasonably proximate past so as to have some continuing potential impact for any ongoing labour relations issues which may be directly related to the records. He went on to find: In my view, section 65(6) must be understood in context, taking into consideration both the stated intent and goal of the Labour Relations and Employment Statute Law Amendment Act (Bill 7) - to restore balance and stability to labour relations and to promote economic prosperity; and overall purposes of the
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Legislation
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Published
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Jun 28, 2001
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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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