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Document
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M-840
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Institution/HIC
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Sudbury Regional Police Services Board
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Summary
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NATURE OF THE APPEAL: The appellant is a lawyer representing three clients who have been involved in incidents with a police officer employed by the Sudbury Regional Police Services Board (the Police). Two clients have been charged with assaulting the police officer, and these charges are still before the courts. According to the appellant, the third client faced similar charges, was acquitted, and has laid private criminal charges against the police officer. The appellant submitted a request to the Police under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to all disciplinary records relating to the police officer. The Police identified 22 pages of responsive records. Pages 5-22 consist of internal memoranda concerning various work-related matters involving the police officer. Pages 2-4 are a memorandum from the police officer to the Police, requesting legal indemnification in responding to the private criminal charges, and a copy of the summons relating to these charges. Page 1 is a memorandum in response from the Police to the appellant. The Police denied access to all responsive records, claiming that they fall within the parameters of section 52(3)1 and 3 of the Act , and therefore outside the scope of the Act . The appellant appealed the decision of the Police. This office sent a Notice of Inquiry to the appellant and the Police seeking representations on the jurisdictional issue raised by sections 52(3) and (4) of the Act . Representations were received from both parties. DISCUSSION: The only issue in this appeal is whether the records fall within the scope of sections 52(3) and (4) of the Act . These provisions read 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. 2. 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. 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. The interpretation of sections 52(3) and (4) is a preliminary issue which goes to the Commissioner's jurisdiction to continue an inquiry. 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 52(4) are present, then the record is excluded from the scope of the Act and not subject to the Commissioner's jurisdiction. Section 52(3)1 In Order M-815, I stated that in order for a record to fall within the scope of paragraph 1 of section 52(3) of the Act , the institution (in this case the Police) must establish that: 1. the record was collected, prepared, maintained or used by the Police or on its behalf; and 2. this collection, preparation, maintenance or usage was in relation to proceedings or anticipated proceedings before a court, tribunal or other entity; and 3. these proceedings or anticipated proceedings relate to labour relations or to the employment of a person by the Police. 1. Were the records collected, prepared, maintained or used by the Police or on their behalf? The Police submit that the records were all collected and prepared by various police officers in the course of dealing with a number of matters involving the police officer. These records are maintained in what the Police refer to as a "discipline/counselling" file. Having reviewed the records, I agree with the Police, and find that they were collected, prepared and/or maintained by the Police. Therefore, the first requirement of section 52(3) has been established. 2. Was this collection, preparation, and/or maintenance in relation to proceedings or anticipated proceedings before a court, tribunal or other entity? The Police submit that the records relate to the disciplinary process established under Part V of the Police Services Act (the PSA ). In order to satisfy this requirement, the Police must establish that a disciplinary matter under Part V of the PSA is a "proceeding", and that such a proceeding is "before a court, tribunal or other entity". Because no disciplinary investigation or hearing has taken place in the circumstances of this appeal, if these two aspects of the second requirement are established, the Police must then go on to establish that these proceedings are "anticipated", and that the records at issue in this appeal were collected, prepared and/or maintained "in relation to" these "anticipated proceedings". " proceedings before a court, tribunal or other entity " Part V of the PSA establishes a process for dealing with misconduct by police officers. Section 56 defines misconduct, and sections 58-61 provide details regarding investigations, hearings and penalties. Under section 58, the Chief of Police is obliged to investigate situations of apparent or alleged misconduct by a police officer. Section 59 provides a process for situations where "the misconduct is not of a serious nature&
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Legislation
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Subject Index
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Published
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Sep 20, 1996
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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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