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Document
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M-835
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Institution/HIC
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Metropolitan Toronto Police
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Summary
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NATURE OF THE APPEAL: The appellant is a former police officer with the Metropolitan Toronto Police Department (the Police). While employed with the Police, the appellant was the subject of an internal complaint which led to an investigation and ultimately to disciplinary charges against him under the Police Services Act (the PSA ). These charges were dismissed. The appellant subsequently launched a civil action against the Police, alleging malicious prosecution and negligent prosecution. This lawsuit is still before the courts. 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 records concerning his PSA disciplinary matter. The Police identified approximately 1,000 pages of records, including letters, reports, minutes, memoranda, statements, court documents, transcripts, trial exhibits, copies of police officers' notebooks, handwritten notations, and other supporting documentation, which were prepared and collected prior to, during and after the appellant's disciplinary hearing. The Police denied access to all responsive records, claiming that they fall within the parameters of section 52(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 all of the records: . . . were collected, prepared, maintained and/or used by a number of [Police] employees, including the appellant's supervisor, Internal Affairs, the appellant and/or his counsel, command officers, the Trial Preparation Office, Reporting Centre and [other police officers involved with a related case], and the Metropolitan Toronto Police Services Board. The appellant's representations do not deal specifically with this requirement. Having reviewed the records, I agree with the Police, and find that the records were collected, prepared, maintained and/or used by the Police or on their behalf. Therefore, the first requirement of section 52(3)1 has been established. 2. Was this collection, preparation, maintenance and/or usage in relation to proceedings or anticipated proceedings before a court, tribunal or other entity? In order to satisfy this requirement, the Police must establish that the disciplinary matter was a "proceeding"; that the proceeding was "before a court, tribunal or other entity"; and that the records were collected, prepared, maintained or used "in relation to" the "proceeding". " proceedings before a court, tribunal or other entity " According to the Police, they received an internal complaint, alleging misconduct by the appellant, pursuant to section 56(a) of the PSA , which states: A police officer is guilty of misconduct if he or she, (a) commits an offence described in a prescribed code of conduct. The Chief is obliged to investigate allegations of misconduct under section 58(1), which states: Any apparent or alleged misconduct by a police officer shall be investigated by his or her chief of police. The Chief may delegate his or her powers and responsibilities under Part V (including the obligations imposed by
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Legislation
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Subject Index
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Published
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Sep 13, 1996
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Type
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Order
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