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M-199

Document		M-199


Institution/HIC		Metropolitan Toronto Police Services Board


Summary		ORDER BACKGROUND: The Metropolitan Toronto Police Services Board (the Police) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to "... all personal information about myself that has been collected by the Metropolitan Toronto Police in the course of their surveillance or investigation of me ..." The Police granted partial access to the records. The records identified as responsive to the request consist of a total of 11 pages from the notebooks of three police officers, and relate to one particular incident. The appellant was provided with copies of pages 1, 6 and 9 of the records, as well as portions of pages 2-5, 7, 8, 10 and 11. The Police indicated that access was denied to the remaining portions of these records on the basis of sections 8(1)(l) and 14(1) of the Act . The requester appealed the decision of the Police to deny access to parts of the records, and indicated that he believed that additional records responsive to his request exist. As well, the appellant appealed the form in which the records have been provided to him on the basis that he is unable to decipher the records. Mediation was not successful, and notice that an inquiry was being conducted to review the decision of the Police was sent to the appellant, the Police and an individual named in the records (the affected person). Written representations were received from all parties. PRELIMINARY MATTER: I have reviewed the records and determined that the portions of the Records 2, 5, 10 and 11 which have been withheld from the appellant are not responsive to the request, as they deal with incidents other than the one involving the appellant. Additionally, in my view, all but one of the portions of the record which the Police have exempted under section 8(1)(l) are not responsive to the request, as they deal with communications related to the officer's availability and not to any incident involving the appellant. As a result, the records remaining in issue consist of one severance at the bottom of page 3, one severance at the top of page 4, and two severances at the bottom of page 7. ISSUES: The issues arising in this appeal are: A. Whether the information contained in the records qualifies as "personal information" as defined in section 2(1) of the Act . B. If the answer to Issue A is yes, whether the discretionary exemption provided by section 38(b) of the Act applies. C. If the answer to Issues A is yes, whether the discretionary exemption provided by section 38(a) of the Act applies. D. Whether section 37(3) of the Act requires that the Police make typewritten transcriptions of handwritten records. E. Whether the Police conducted a reasonable search for responsive records. SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether the information contained in the records qualifies as "personal information" as defined in section 2(1) of the Act . Section 2(1) of the Act states, in part: "personal information" means recorded information about an identifiable individual, ... Having reviewed the portions of the records which remain at issue in this appeal, I find that they all contain information that satisfies the definition of personal information in section 2(1) of the Act . I find that this information is the personal information of the appellant. As well, I find that the name, address, telephone number and statement on pages 3 and 4 of the records, and the name and telephone number on page 7, is the personal information of the affected person. ISSUE B: If the answer to Issue A is yes, whether the discretionary exemption provided by section 38(b) of the Act applies. Under Issue A, I found that all portions of the records contain the personal information of the appellant, and that the name, address, telephone number and statements on pages 3 and 4 of the records, and the name and telephone number on page 7, is the personal information of the affected person. Section 36(1) of the Act gives individuals a general right of access to personal information about themselves, which is in the custody or under the control of an institution. However, this right of access is not absolute; section 38 provides a number of exceptions to this general right of access, including section 38(b), which states: A head may refuse to disclose to the individual to whom the information relates personal information, if the disclosure would constitute an unjustified invasion of another individual's personal privacy; The section introduces a balancing principle. The Police must look at the information and weigh the appellant's right of access to his personal information against the affected person's right to the protection of personal privacy. If the Police determine that release of the information would constitute an unjustified invasion of the affected person's personal privacy, then section 38(b) gives the Police the discretion to deny the appellant access to his personal information. Sections 14(2), (3) and (4) of the Act provide guidance in determining whether the disclosure of the personal information contained in the records would constitute an unjustified invasion of personal privacy. The Police submit that section 14(3)(b) of the Act applies. This section reads: A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy if the personal information, was compiled and is identifiable as part of an investigation into a possible violation of law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation; The Police, however, have not indicated what possible violation of law was being investigated, and in my view the records do not refer to any such possible violation of law. It is therefore my view that the presumption contained in section 14(3)(b) of the Act does not apply. The Police submit that a number of additional factors were considered in the decision not to disclose the personal information of the affected person to the appellant. These considerations included the fact that the personal information of the affected person was collected only incidentally as a result of the inquiries made by the Police; the


Legislation		MFIPPA 14(3)(b) 2(1) personal information 37(3) 38(a) 38(b)


Subject Index		Police Records comprehensible form compiled as part of an investigation other considerations reasonable steps to locate record


Signed by		Holly Big Canoe


Published		Oct 14, 1993


Type		Order


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