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Document
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MO-1304-F
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Institution/HIC
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Toronto Police Services Board
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Summary
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NATURE OF THE APPEAL: This is my final order in respect of the outstanding issues from Interim Orders MO-1277-I and MO-1287-I. BACKGROUND: The Toronto Police Services Board (the Police) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) from a lawyer representing an individual who was injured in an incident involving the local transit authority. The request was for a copy of the notebook entries of the two investigating police officers. After notifying a witness identified in the records (the affected person) and receiving no response, the Police granted partial access, claiming section 14(1) of the Act as the basis for denying access to information relating to the affected person. The Police relied on the "presumed unjustified invasion of personal privacy" in section 14(3)(b) of the Act in support of the section 14(1) exemption claim. The appellant appealed this decision. I sent a Notice of Inquiry to the Police, the appellant and the affected person. Only the Police and the appellant responded by submitting written representations. After reviewing the representations and the one-page record which remained at issue, I issued Interim Order MO-1277-I . In that order, I found that the record satisfied the requirements of section 14(3)(b) of the Act , but that the Police had improperly processed the request under Part I rather than Part II of the Act . As a consequence, the Police had failed to exercise discretion under section 38(b) of the Act , which provides the Police with discretion to balance two competing interests - the appellant's right of access to his personal information and the affected person's right to privacy. If the Police were to conclude that the balance weighs in favour of disclosure, the record could be released to the appellant, even if the Police have determined that this disclosure would represent an unjustified invasion of the affected person's privacy. I included a provision in Interim Order MO-1277-I requiring the Police to exercise discretion under section 38(b) with respect to the record and to provide me with representations as to the factors they considered. I received representations from the Police in compliance with this provision. After reviewing their representations I came to the conclusion that the Police had not properly exercised discretion in this instance, based on my view that the Police did not adequately take into account the competing interests of access and privacy protection, nor was it clear to me that the Police took the particular circumstances of this case into account in exercising discretion in favour of denying access. My conclusion was based on the following statements made in Interim Order M-1277-I: I accept the Police's submission that the nature of police institutions and the work they do are valid considerations in the exercise of discretion, but I do not accept that this places the Police in a "unique status" as it relates to the safeguarding of privacy interests of individuals. All institutions under the Act are charged with the responsibility to balance access and privacy rights under section 38(b) of the Act , including police institutions, and the fact that the Police gather personal information as part of their law enforcement mandate is only one factor that must be taken into account in the proper exercise of discretion. Although the Police state that they weigh privacy and access rights in every access request file, and have done so "in light of the particular circumstances of this request", the representations provided by the Police do not establish this. Other than a brief response to my reference to section 14(2)(d) in Interim Order MO-1277-I, the Police do not discuss the appellant's right of access to his personal information, nor do the Police identify the particular privacy interests of the affected person being considered in balancing the two rights. Although the affected person was notified by both the Police before responding to the request and by me during this inquiry, at no point did he provide representations as to the sensitivity of his personal information contained in the record. The Police do not appear to have taken this relevant fact into account in exercising discretion. Although in Order M-532, former Inquiry Officer [John] Higgins expresses his view that the exercise of discretion under section 38(b) to disclose personal information of an individual other than the requester would be rare, he also states clearly in his discussion that the decision is a discretionary one that must be made by balancing the competing interests present in a particular fact situation. Accordingly, I decided to again return this appeal to the Police to reconsider the exercise of discretion under section 38(b) of the Act and to provide me with representations as to the factors they considered while doing so. I received representations from the Police. DISCUSSION: With respect to their exercise of discretion, the Police state, in part: As stated in our previous representations, none of the information which could be considered as the personal information of the appellant could be disclosed without revealing the personal information of the [affected person]. The statement in question is told, both literally and psychologically, from the [affected person's] point of view. Although the [affected person] has chosen not to respond to the police or the IPC request for his opinion concerning release of his statement, this lack of response should not permit the arbitrary abrogation of his rights. Subsection 5(4) [of the Act ] states that: "A person who is given notice under subsection (2) may make representations forthwith to the head concerning why the record or part should not be disclosed." The above is reiterated in subsection 21(2)(c), which states that the notice to an affected person shall contain: "a statement that the person may , within
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Legislation
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Subject Index
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Published
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May 18, 2000
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Type
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Order – Final
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© Copyright
2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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