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Document
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MO-1280
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Institution/HIC
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Chatham-Kent Police Services Board
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Summary
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NATURE OF THE APPEAL: The appellant made a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) to the Chatham-Kent Police Services Board (the Police). The request was for access to information relating to the appellant's complaint against three members of the Amherstburg Police Service and the related investigation which was conducted by the Police at the request of the Ontario Civilian Commission on Police Services (the OCCPS). Included was a request for a copy of the summary of the appellant's meeting with the Police Inspector who carried out the investigation of her complaint. The Police informed the appellant that pursuant to the provisions found in sections 52(3)1 and 52(3)3, the requested records were excluded from the scope of the Act . The appellant appealed the decision of the Police, claiming that the records are not excluded from the scope of the Act . During the mediation of the appeal, the Police advised this office that any notes taken by the Police Inspector at the time of his interview with the appellant no longer exist. The appellant indicated that she believes that these records should exist and that she wished to have this issue addressed in the Inquiry. This office provided a Notice of Inquiry to the appellant and the Police setting out the issues in this appeal. Representations were received from the appellant only. RECORDS: The records at issue consist of documentation addressing the appellant's police complaint, including correspondence, memoranda, statements from various individuals, reports and an e-mail message. The appellant is not seeking access to records which she provided to the Police, and such records are, therefore, not at issue in this appeal. DISCUSSION: JURISDICTION Sections 52(3) and (4) 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: 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 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 . Section 52(3)1 In order for a record to fall within the scope of 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. Parts One and Two of the Test Based on my review of the records to which the Police have applied section 52(3)1, I am satisfied that they were collected, prepared, maintained and used by the Police. I further find that this collection, preparation, maintenance and usage was in relation to anticipated proceedings under the Police Services Act (the PSA ) before an "other entity", specifically the Chief of the Amherstburg Police (the Chief) or his delegate (Orders M-835, M-840 and MO-1186). The report prepared by the Police Inspector was submitted to the Chief and any discipline proceedings or other action pursuant to the provisions of the PSA would lie not with the Chatham-Kent Police, but with the Chief. The first two components of the test have, accordingly, been met. Part Three of the Test In Order M-835, Assistant Commissioner Tom Mitchinson made the following findings with respect to whether proceedings under the PSA relate to either labour relations or the employment of a person by the Police: Despite what I acknowledge to be a general public interest in policing matters, I find that these Part V [of the PSA ] proceedings do in fact "relate to the employment of a person by the institution". The penalties outlined in section 61(1), which may be imposed after a finding of misconduct, involve dismissal, demotion, suspension, and the forfeiting of pay and time. In my view, these can only reasonably be characterized as employment-related actions, despite the fact that they are contained in a statute and applied to police officers. I adopt the statements of the Assistant Commissioner for the purposes of this appeal and find that because the records relate to the investigation into the appellant's
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Legislation
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MFIPPA
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Section 19
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52(3)1
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52(3)3
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Subject Index
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Signed by
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Donald Hale
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Published
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Feb 29, 2000
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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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