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Document
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MO-1346
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Institution/HIC
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Hamilton-Wentworth Regional Police Services Board
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Summary
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NATURE OF THE APPEAL: The Hamilton-Wentworth Regional Police Services Board (the Police) received a request pursuant to the Municipal Freedom of Information and Protection of Privacy Act (the Act ) from a member of the media for "all records that would tell me the results of all the Police Act hearings involving members of your service in the past five years". The requester made an identical request to the Halton Regional Police Services Board and the Niagara Regional Police Services Board. The Police denied access to all responsive records, claiming that they qualified for exemption under sections 8(2)(a) (law enforcement), 13 (danger to health and safety) and 14(1) (personal privacy). The Police raised the presumptions in sections 14(3)(b) and (d) and the factors in sections 14(2)(e), (f) and (i) in support of the section 14(1) exemption claim. The requester (now the appellant) appealed the Police's decision, maintaining that the hearings themselves are open to the public and that the information relating to those hearings should also be available to the public. During the course of mediation, the Police issued a supplementary decision, claiming that the records fell outside the scope of the Act by virtue of section 52(3). Also during mediation, the appellant confirmed that she was seeking access to the names and ranks of the police officers charged under the Police Services Act (the PSA ), the charges themselves, and the results of the hearings. The appellant has also raised the possible application of the public interest override in section 16 of the Act . Because mediation was not successful, the appeal moved to the inquiry stage. I sent a Notice of Inquiry initially to the Police, who provided representations in response. I then sent the Notice to the appellant, along with a copy of the non-confidential portions of the Police's representations. The appellant advised this Office that she would not be providing any representations. RECORDS: The records identified by the Police as being responsive to the request consist of 43 documents reflecting the results of hearings held under the PSA . These records include the names and ranks of each police officer, the charges laid under the PSA , and the results or disposition of these charges. PRELIMINARY MATTER: Scope of the Request/Reasonableness of Search The appellant has indicated why she believes that additional responsive records should exist. It is my responsibility to ensure that the Police have made a reasonable search to identify all responsive records. The Act does not require the Police to prove with absolute certainty that further records do not exist. However, in order to properly discharge its obligations under the Act , the Police must provide sufficient evidence to show that it has made a reasonable effort to identify and locate all responsive records (Orders M-282, P-458 and P-535). A reasonable search would be one in which an experienced employee expending reasonable effort conducts a search to identify any records that are reasonably related to the request (Order M-909). In seeking to narrow the scope of the appellant's request, the Police submit: It is presumed that the requester seeks the results of disciplinary hearings conducted under the Police Services Act and not its predecessor, the Police Act . Disciplinary hearings are conducted under Part V of the current Police Services Act (enacted October 1997) consequent to an investigation into a "complaint". Complaints relating to the conduct of a police officer may be initiated by a member of the public or by the chief of police, and must be "employment related" in the sense that an officer cannot be found guilty of misconduct if there is no connection between the conduct complained of and the occupational requirements for a police officer or the reputation of the police force. (Reference: s. 74(2) Police Services Act ) I do not accept this position. Although the appellant did not provide representations clarifying her position on the scope of her request, I assume from the wording of the request itself and the fact that it covers a time period which pre-dates the 1997 amendments creating the new PSA , that she wanted access to the results of hearings held under both the current PSA and the former version of the Police Services Act , which was in force since 1990. There is no evidence before me to suggest that the Police discussed a narrowing of the scope of the request with the appellant, and I find that, in the absence of agreement from the appellant, it is not reasonable to interpret her request in the narrowed manner suggested by the Police. Therefore, I find records containing information which would reflect the results of hearings under both the current and former versions of the PSA for the five-year period stated in the request would be responsive. The Police also submit that: It is the position of the Police Service that the records requested would not include: (1) Cases where officers subject to formal Police Services Act charges have resigned or retired prior to the hearing. In that event, there is no result of a Police Services Act hearing as no hearing has been proceeded with. The Notice of Hearing may or may not indicate the charges were adjourned sine die or withdrawn - in some cases, the hearing is not continued following the resignation/retirement due to the fact that jurisdiction over the incident (offence) and officer is lost upon resignation/retirement. This result is mandated by Part V of the legislation which specifies that the disciplinary process applies to serving police officers only and not to former members. (2) Where formal charges have been withdrawn and informal discipline has been proceeded with. In this scenario, while the withdrawal is technically the result of a Police Services Act hearing , and may be responsive, the fact of informal disposition is not the result of a hearing and is, thus, not responsive. Furthermore, as stated under s. 52(4) [of the
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Legislation
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Subject Index
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Published
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Oct 12, 2000
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Type
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Order
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2013
Information and Privacy Commissioner of Ontario. All Rights Reserved.
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