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Document
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M-380
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Institution/HIC
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Ottawa 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 Ottawa Police Services Board (the Board) received a request under the Act for all records, tape recordings, proceedings and minutes of a meeting of the Board held on December 20, 1993 (the meeting). The purpose of the meeting was to determine the Board's response to an incident involving a named Ottawa City councillor who was also a member of the Board (the councillor). The request was made by a newspaper reporter (the appellant), who has been represented by counsel throughout these proceedings. The following records remain at issue in this appeal: Pages 28B, 29, 30, 31 (minutes of the meeting) and three audio tapes of the meeting. Pages 30 and 31 are duplicates except for a handwritten correction on Page 30, which is incorporated into the text as it appears on Page 31. The Board relies on the following exemptions in denying access to these records: closed meeting - section 6(1)(b) invasion of privacy - section 14(1). A Notice of Inquiry was provided to the appellant's solicitor, the Board and the councillor. Representations were received from the appellant's solicitor and the Board. DISCUSSION: CLOSED MEETING In order to qualify for exemption under section 6(1)(b) of the Act , the institution must establish that: 1. a meeting of a council, board, commission or other body or a committee of one of them took place; and 2. that a statute authorizes the holding of this meeting in the absence of the public; and 3. that disclosure of the record at issue would reveal the actual substance of the deliberations of this meeting. Previous orders have established that the first and second parts of the test for exemption under section 6(1)(b) require the Board to establish that a meeting was held and that it was held in camera. The Board has provided an affidavit sworn by the recording secretary of the meeting, which provides evidence that the meeting was in fact held (which satisfies part one of the test) and that it took place in camera. With respect to part two of the test, the Board relies upon the provisions of section 35(4)(b) of the Police Services Act (the PSA ) as its statutory authority for holding this meeting in the absence of the public. This section states: The Board may exclude the public from all or part of a meeting or hearing if it is of the opinion that, intimate financial or personal matters or other matters may be disclosed of such a nature, having regard to the circumstances, that the desirability of avoiding their disclosure in the interest of any person affected or in the public interest outweighs the desirability of adhering to the principle that proceedings be open to the public. In effect, this section gives the Board the discretion to exclude the public from all or part of a meeting if it "is of the opinion that" the criteria mentioned in the section are met. The appellant submits that the requirements for holding a meeting in the absence of the public under this section were not met because intimate financial or personal matters were not to be disclosed in the meeting. Alternatively, the appellant submits that, "having regard to the circumstances", the meeting ought not to have been conducted in camera. I do not agree with these submissions. In my view, the Board exercised its discretion reasonably, based upon relevant factors. The meeting was held to consider the appropriateness of the councillor's actions in connection with the incident, together with possible disciplinary action against him. In my opinion, this qualifies as an "intimate personal matter" within the meaning of section 35(4)(b) of the PSA . This section also makes reference to "the circumstances". In my view, it is a relevant circumstance that the Board issued a statement of its decision in this matter including background information and a detailed account of the incident, which provided an appropriate degree of public disclosure. Accordingly, I find that section 35(4)(b) of the PSA authorized the meeting to be held in the absence of the public. The appellant's solicitor has also made a related argument with respect to section 2(b) of the Canadian Charter of Rights and Freedoms (the Charter ). He submits that this section of the Charter required the meeting to be held in public. This section states: Everyone has the following fundamental freedoms: freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication. It has been previously established that the Commissioner and his delegates have the authority to deal with Charter issues in matters properly before them (Order P-254). I have considered whether the appellant's submission with respect to the Charter affects a matter which is "properly before me". In my view, the only matter "properly before me" which could be affected by this submission is whether a statute authorized the holding of the meeting in the absence of the public (i.e. part two of the test). The statute in question is the PSA . The appellant has not submitted that section 35(4)(b) of the PSA is inconsistent with section 2(b) of the Charter . Rather, this submission, which is not clearly expressed, appears to suggest either: (1) that subsections 35(3) and (4), including subsection 35(4)(b), should be construed and applied in light of section 2(b) of the Charter so as to require the meeting of December 20, 1993 to have been held in public; or (2) that the action of the Board in exercising its discretion under section 35(4)(b) to exclude the public from the meeting of December 20, 1993 is contrary to section 2(b) of the Charter . However, the appellant has not provided any representations which specifically address these points. Beyond his broad assertion that the meeting was required to be held in public, he has not provided any argument to support his submission with respect to the Charter . Consequently, I find that the appellant's Charter argument has not been substantiated. Accordingly, part two of the test has been met. I will now turn to the part three of the test. In Order M-
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Legislation
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Subject Index
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Published
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Aug 26, 1994
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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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