IPC - Office of the Information and Privacy Commissioner/Ontario

Français

Site Map

Advanced Search

Subject Index Listing

Reconsideration Table

Judicial Review of Municipal Orders

Judicial Review of Provincial Orders

Judicial Review of Privacy Complaint Reports

The Acts

Recent Orders

M-329

Document		M-329


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 20 different items. Four of the items form the subject of this appeal. They are: information relating to an alleged computer system transmission failure on June 18, 1993 (Item 7); an inventory of all computer equipment and facsimile machines owned or leased by the force and their depreciation schedules (Item 8); a listing of names and Internet addresses for systems identified by the requester, including the names of every machine, all user names and full UUCP addresses (Item 11); and a listing of frequencies used by the Police for data transmission, speed of modems, stop bit and parity, and all information relating to the use of computer services available in police vehicles (Item 15). The Police responded by refusing to confirm or deny the existence of any record responsive to Item 7 pursuant to section 8(3) of the Act . The Police further denied access to the information relating to Items 8, 11 and 15 under section 8(1) of the Act . The requester appealed these decisions to the Commissioner's office. Mediation was not successful and notice that an inquiry was being conducted to review the decision of the Police was sent to the appellant and the Police. Representations were received from the Police only. In their representations, the Police indicate that, if records of the nature requested in Item 7 exist, they would qualify for exemption under section 8(1) of the Act . ISSUES: The issues arising in this appeal are as follows: A. Whether records of the nature requested in Item 7, if they exist, would qualify for exemption under section 8(1) of the Act . B. Whether section 8(3) of the Act applies to the information requested in Item 7 in the circumstances of this appeal. C. Whether the discretionary exemptions found in sections 8(1)(a), (i) and (l) of the Act apply to records relating to Items 8, 11 and 15. SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether records of the nature requested in Item 7, if they exist, would qualify for exemption under section 8(1) of the Act. The Police submit that, if records of the nature requested in Item 7 exist, they would qualify for exemption under sections 8(1)(a), (i) and (l) of the Act . These sections provide that: A head may refuse to disclose a record if the disclosure could reasonably be expected to, (a) interfere with a law enforcement matter; (i) endanger the security of a building or the security of a vehicle carrying items, or of a system or procedure established for the protection of items, for which protection is reasonably required; (l) facilitate the commission of an unlawful act or hamper the control of crime. The purpose of the exemptions contained in section 8(1) is to provide the Police with the discretion to preclude access to records in circumstances where disclosure of the records could reasonably be expected to lead to one of the harms set out in this section. The Police bear the onus of providing sufficient evidence to substantiate the reasonableness of the expected harm(s) and, in my view, the Police discharge this onus by establishing a clear and direct linkage between the disclosure of the specific information and the harm alleged (Orders P-534 and P-542). The Police submit that disclosure of records of the nature requested in Item 7, if they exist, would provide information which could reasonably be expected to interfere with, or cause the interruption of, communications within the Police service. The Police further state that the release of records of this type could facilitate unauthorized access into these systems and could be used by knowledgable individuals to facilitate the commission of an unlawful act or hamper the ability of the Police to control crime. The Police's representations then provide detailed evidence as to how the disclosure of such records would lead to the harms set out in sections 8(1)(i) and (l). Having reviewed the representations of the Police, I am satisfied that disclosure of records of the type requested, if they exist, could reasonably be expected to endanger the security of a system established for the protection of items for which protection is reasonably required (section 8(1)(i)), and could also reasonably be expected to facilitate the commission of an unlawful act or hamper the control of crime (section 8(1)(l)). Accordingly, I find that records of the type requested in Item 7, if they exist, would qualify for exemption under both sections 8(1)(i) and (l) of the Act . Because of the manner in which I have dealt with this issue, it is not necessary for me to consider the potential applicability of section 8(1)(a) to records of this type. ISSUE B: Whether section 8(3) of the Act applies to the information requested in Item 7 in the circumstances of this appeal. In their representations, the Police state that they are relying on section 8(3) of the Act to refuse to confirm or deny the existence of records responsive to Item 7 of the appellant's request. Section 8(3) of the Act provides: A head may refuse to confirm or deny the existence of a record to which subsection (1) or (2) applies. A requester in a section 8(3) situation is in a very different position than other requesters who have been denied access under the Act . By invoking section 8(3), the Police are denying the requester the right to know whether a record exists, even when one does not. This section provides the Police with a significant discretionary power which I feel should be exercised only in rare cases. In Order P-542, former Inquiry Officer Asfaw Seife made the following statements about section 14(3) of the Freedom of Information and Protection of Privacy Act , which is the equivalent of section 8(3) of the Act : An institution relying on section 14(3) of the Act must do more than merely indicate that records of the nature requested, if they exist, would qualify for exemption under sections 14(1) or (2). The institution must establish that disclosure of the mere existence or non existence of such a record would communicate to the requester information that would fall under either section 14(1) or (2) of the Act .


Legislation		MFIPPA 8(1)(a) 8(1)(i) 8(1)(l) 8(3)


Subject Index		crime control


Published		Jun 07, 1994


Type		Order


<< Back

Main Menu