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M-773

Document		M-773


Institution/HIC		Metropolitan Licencing Commission


Summary		NATURE OF THE APPEAL: The Metropolitan Licencing Commission (the MLC) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to records relating to charges laid under a new by-law provision dealing with so-called "lap dancing". The requester wanted: a list of persons charged, when the charge was laid, and the details of each charge contained in the summons information documents; court dates and courtroom locations for each charge already laid; and ongoing access to information concerning future similar charges. The requester asked to be provided with all responsive records free of charge. The MLC identified 19 responsive records. Each record consists of one or more of the following documents, all of which relate to the same incident: Summons Information sheets prepared by the MLC's Enforcement Officers; formal Summons documents issued by the Ontario Court of Justice (Provincial Division); and Reports of Convictions issued by the same court. The MLC denied access to all records based on one or more of the following exemptions contained in the Act : law enforcement - section 8(1)(a) invasion of privacy - section 14(1) The MLC also raised section 15 (information published or available to the public) as the basis for denying access to the court dates and courtroom locations. The MLC advised the requester that by-law charges are heard in open court "... regularly on Monday and Tuesday mornings and all day Wednesday in "K" court at 90 Queen Street West, Toronto", and claimed that he could obtain the requested information from the daily dockets posted outside this courtroom. As far as the continuing access aspect of the request was concerned, the MLC stated that the Act does not provide for ongoing or future access, and that access to records created after the date of the request letter would have to be the subject of a new request. The MLC advised the requester that it intended to charge fees in accordance with the appropriate regulations. The requester (now the appellant) appealed the decision to deny access, and also the MLC's refusal to treat the request as one for continuing access. The appellant also identified a possible public interest in disclosure of the records, thereby raising the potential application of the so-called "public interest override" contained in section 16 of the Act . The appellant did not include the issue of fees within the scope of his appeal. Mediation was not successful, and this office sent a Notice of Inquiry to the appellant and the MLC. Representations were received from both parties. DISCUSSION: INFORMATION PUBLISHED OR AVAILABLE Section 15(a) of the Act states: A head may refuse to disclose a record if, the record or the information contained in the record has been published or is currently available to the public; In its original response to the appellant, the MLC identified the dockets posted outside the courtroom where the charge is heard as a publicly available source of information concerning court dates and courtroom locations. In its representations, the MLC states that all matters which relate to the records have proceeded to court, and have either been dealt with or have been set down for hearings. In the MLC's view, the information contained in the records is available through the court system, and therefore the provisions of section 15(a) apply. The appellant submits that because a wide range of different by-law charges are covered by the courts identified by the MLC, it would be almost impossible to identify the charges he is seeking. He goes on to state that: "It would also require an inordinate amount of time, money and effort to sift through the information. It would constitute a daily fishing expedition, at the end of which there is not guarantee of finding the cases sought." In Order 170, Inquiry Officer John McCamus discussed the purpose of the discretion conferred by section 22(a) of the Freedom of Information and Protection of Privacy Act (the provincial Act , which is identical in wording to section 15(a)). On Page 108 of that order, Mr. McCamus stated: In general terms, the Ministry appears to be correct in suggesting that the purpose of the discretion conferred by section 22(a) relates to questions of convenience. Obviously, there is no other public interest to be served by withholding disclosure of information which is readily available elsewhere. Accordingly, the discretion to disclose is conferred for the evident purpose of enabling a head to avoid disclosure where that process merely involves expending the resources of the Ministry on the photocopying of material which is otherwise readily available and, from the Ministry's point of view, more conveniently available to the requester in another form. It would, on the other hand, be an abuse of the discretion conferred by section 22(a) if the head were to refuse disclosure of information otherwise publicly available where the refusal does not rest on a balance of convenience of this kind and/or where the refusal to disclose will have the effect of refusing to disclose the nature of the information contained in the Ministry's records which is thought by the Ministry to be responsive to the request. I applied this reasoning in Order P-327, where I made the following statement regarding section 22(a): In my view, in order for records to qualify for exemption under section 22(a), they must either be published or available to members of the public generally, through a regularized system of access, such as, for example, a public library or a government publications centre. ... In my view, the section 22(a) exemption is intended to provide an institution with the option of referring a requester to a publicly available source of information where the balance of convenience favours this method of alternative access. This line of reasoning has been subsequently followed in a number of orders issued by this office. In the circumstances of this appeal, I find that the specific information sought by the appellant is not readily available through the "regularized system of access" identified by the MLC. As the appellant points out, a number of different by-law matters are heard by the c


Legislation		MFIPPA 14(2)(e) 14(3)(b) 8(1)(a) Section 15 Section 16


Subject Index		Public Interest Override


Published		May 17, 1996


Type		Order


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