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Document
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MO-1356
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Institution/HIC
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Sudbury Regional Police Services Board
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Summary
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NATURE OF THE APPEALS: The appellant submitted two requests to the Sudbury Regional Police Services Board (the Police) under the Municipal Freedom of Information and Protection of Privacy Act (the Act ). In the first request (Appeal MA-000016-1), the appellant asked for all materials compiled between April 28, 1999 and September 1, 1999, relating to Police investigations concerning himself. The appellant provided a list of six types of information to which he was particularly seeking access. The appellant subsequently included, as part of this request, access to a copy of a taped interview which took place on July 1, 1999. In the second request (Appeal MA-000017-1) the appellant asked for a copy of all materials in regards to a specified incident number. In both cases, the appellant advised the Police that he was seeking the requested records in connection with a legal proceeding in which he was involved. The Police located records responsive to both requests and granted partial access to them. The Police then denied access to the remaining portions of the records with respect to each request as follows: Appeal MA-000016-1 The Police withheld the remaining portions of the records on the basis of the following exemptions under the Act : sections 8(2)(a) (law enforcement report), 14(1)(f) with reference to sections 14(3)(a) and 14(3)(b) and 38(b) (invasion of privacy). The Police also indicated that certain identified portions of the records were not responsive to the request. Appeal MA-000017-1 The Police withheld the remaining portions of the records on the basis of the following exemptions under the Act : sections 8(1)(c) (law enforcement - investigative techniques), 8(2)(a) (law enforcement report), 8(2)(c) (law enforcement - civil liability), 14(1)(f) with reference to sections 14(3)(a) and 14(3)(b) and 38(b) (invasion of privacy). The Police also identified certain portions of these records as not responsive to the request. The appellant appealed both decisions. During mediation, the Police disclosed additional information to the appellant. The Police also withdrew their reliance on section 14(3)(a) in Appeal MA-000016-1 and sections 8(1)(c) and 14(3)(a) in Appeal MA-000017-1. Also during mediation, the Mediator assigned to these appeals explained to the appellant the nature of the information which the Police had withheld as being not responsive to his request. The appellant does not accept that this information is not responsive; therefore, the responsiveness of these portions of the records remains at issue in this appeal. During mediation, the Mediator raised the possible application of section 38(a) (discretion to refuse requester's own information) to the records for which section 8 had been claimed. The Police subsequently agreed that it should have been claimed and issued a supplemental decision to the appellant advising him that they also rely on section 38(a) to withhold the records from disclosure. The Mediator issued a Report of Mediator to the parties. This document sets out the issues in the appeals, those issues which have been resolved and those remaining in dispute. After receiving the Report, the appellant contacted this office and raised the possible application of the so-called "public interest override" in section 16 of the Act . Although this issue was raised late in the process, I have decided to include it as an issue in this appeal. The appellant also indicated that he takes issue with the Police claiming an additional discretionary exemption after the date set out in the Confirmation of Appeal for doing so. As I indicated above, the Police claimed the application of section 38(a) following discussions with the Mediator regarding its possible applicability. I sent a Notice of Inquiry to the Police, initially. The Police submitted representations in response and I subsequently sent the non-confidential portions of them to the appellant along with a modified Notice of Inquiry. The appellant submitted extensive representations in response. As well, the appellant submitted a note from two individuals identified in the videotape that is at issue in Appeal MA-000016-1 consenting to the disclosure of their personal information contained in the videotape to the appellant. In responding to my subsequent queries regarding the consent issue, the Police indicated that although they are no longer concerned about the disclosure of the personal information relating to these two individuals in this record, they continue to rely on sections 38(b), 8(2)(a) and 38(a). RECORDS: Appeal MA-000016-1 The records at issue consist of the withheld portions of Incident Details, a General Occurrence Report, Supplementary Reports, Persons Lists - Involved in Incident and Police Officer's notes and a videotape which was denied in its entirety. Appeal MA-000017-1 The records at issue consist of the withheld portions of Incident Details, a General Occurrence Report, Persons Lists - Involved in Incident and Police Officer's notes. In this order, I will refer to "the records" as meaning the records contained in both Appeals MA-000016-1 and MA-000017-1 unless it is necessary to refer to a particular record in a particular appeal in which case the relevant appeal number will be identified. PRELIMINARY MATTER: LATE RAISING OF A DISCRETIONARY EXEMPTION As I indicated above, as a result of discussions between the Mediator and the Police, the Police agreed that section 38(a) should have been claimed for the records to which section 8 had been applied. The appellant took issue with this decision and the involvement of the Mediator in arriving at it. In the Notice of Inquiry, I stated that I would not include the late raising of a discretionary exemption as an issue in these appeals, and therefore, not seek submissions from the Police, for the following reasons: Part I of the Act deals with "Access to Records". Section 4, which is included in Part I, provides individuals with a general right of access to records within the custody or control of institutions, subject to a number of exemptions outlined in sections 6 through 15. Section 8 of the Act is a discretionary exemption. This means that if it is established that the records qualify for exemption pursuant to any part of section 8, the institution may deny access to that information. Part II of the Act deals with the "Protection of Personal Privacy". Section 36(1), which is included in Part II, provides individuals with a general right of access to their own personal information, subject to a number of exemptions outlined in section 38. One of these exemptions, section 38(a), permits the institution to refuse to disclose a record containing the requester's own personal information where section 8, among others, applies. In Order M-352, former Adjudicator John Higgins reviewed the statutory context under which an analysis of personal information in a record should be made. Although his analysis of this issue was made in the context of the exemptions in sections 14 and 38(b), in my view, the principles underlying the decision are equally applicable to section 38(a). He discussed at some length the legislature's purpose f
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Legislation
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Subject Index
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Published
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Oct 30, 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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