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Document
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MO-1855
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Institution/HIC
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Durham Regional Police Service
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Summary
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NATURE OF THE APPEAL: The Durham Regional Police Service (the Police) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ), for access to all driver and witness statements relating to a fatal motor vehicle accident. The requester also asked whether the Police had possession of any other information or documentation about the accident in addition to the various statements. The request was submitted by a law firm on behalf of the insurer of the driver of one of the vehicles who had been charged as a result of the accident. The requester provided the Police with a written consent from their insured to disclose the requested records to him. As such, I will treat the requester and the insured as interchangeable and will refer to them both as the “requester” or the “appellant” throughout this order. The Police identified 11 driver and witness statements as the records responsive to the request and denied access to them in their entirety, pursuant to section 8(2)(a) (law enforcement) and section 14(1) (invasion of privacy) of the Act . The Police relied on the presumptions in sections 14(3)(a) and 14(3)(b) and the factor in section 14(2)(f) in support of the section 41(1) claim. In their decision letter, the Police also stated that the requester did not provide information to meet the requirements of section 54(a). The requester, now the appellant, appealed the Police’s decision. During mediation, the Police confirmed that aside from the 11 statements, no additional responsive records were located, with the exception of an incident report that the appellant already had. The appellant advised that he was satisfied with this response. With the consent of the Police, the Mediator provided the appellant with further information about the nature of the responsive records, specifically that three of the statements are recorded on videotape and that the remaining eight statements are recorded on the standard paper witness statement forms. The Police advised that they did not have the resources to edit the videotapes. Also during mediation, the appellant confirmed that section 54(a) is not at issue in this appeal. The Mediator notified eight of the individuals who had provided the witness or driver statements (the affected parties), in an attempt to seek consent to the disclosure of the records. No contact information could be found for the other three witnesses. Four of the eight notified affected parties provided consent to the disclosure of their personal information. One of those individuals agreed to disclose the content of her statement, but objected to the release of her name, address, telephone number and employment information, which was recorded on the back page of the statement. The Police declined to release the statements for which consent had been obtained on the basis that the statements also contain the personal information of other individuals, including the person who died in the accident. Further mediation efforts were not successful and the appeal was transferred to me for adjudication. Because it appears that all of the records might contain the appellant’s personal information, I added sections 38(a) and 38(b) (right of access to one’s own personal information) as possible issues in this appeal. I began my inquiry by sending a Notice to Inquiry to the Police, the four previously notified affected parties who did not consent to the disclosure of their statements, and the one affected party who agreed to disclose the statement itself but not the specified information on the back page. Only the Police responded with representations. I then sent the Notice to the appellant, together with a copy of the Police’s representations. The appellant in turn submitted representations. RECORDS: The records consist of 11 witness and driver statements. Three statements are recorded on videotape and eight on paper. DISCUSSION: PERSONAL INFORMATION In order to determine which sections of the Act may apply, it is necessary to decide whether the record contains “personal information” and, if so, to whom it relates. Section 2(1) of the Act defines “personal information”, in part, as follows: “personal information” means recorded information about an identifiable individual, including, (a) information relating to the race, national or ethnic origin, colour, religion, age, sex, sexual orientation or marital or family status of the individual, (c) any identifying number, symbol or other particular assigned to the individual, (d) the address, telephone number, fingerprints or blood type of the individual, (e) the personal opinions or views of the individual except where they relate to another individual, (g) the views or opinions of another individual about the individual, and (h) the individual’s name where it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual; The parties are in agreement, and I concur, that the individual records contain the “personal information” of the witnesses who provided their statements to the Police. As the driver charged under the Highway Traffic Act as a result of the accident, I find that all of the records also contain the “personal information” of the appellant. Finally, I find that all of the records contain the “personal information” of the individual who died in the accident; and a number also contain the views and opinions of the witnesses about other individuals involved in the accident, including other drivers, thereby falling within the scope of paragraph (g) of the definition. RIGHT OF ACCESS TO ONE’S OWN PERSONAL INFORMATION/LAW ENFORCEMENT Introduction Section 36(1) of the Act gives individuals a general right of access to their own personal information held by an institution. Section 38 provides a number of exemptions from this right. Under section 38(a), an institution has the discretion to deny an individual access to their own personal information where the exemptions in sections 6, 7, 8, 8.1, 8.2, 9, 10, 11, 12, 13 or 15 would apply to the disclosure of that information. Section 8(2)(a) The Police claim that the various witness statements fall within the scope of section 8(2)(a), which reads: A head may refuse to disclose a record, (a) that is a report prepared in the course of law enforcement, inspections or investigations by an agency which has the function of enforcing and regulating compliance with a law; The term “law enforcement” is used in several parts of section 8, including section 8(2)(a), and is defined in section 2(1) as follows: “law enforcement” means, (a) policing, (b) investigations or inspections that lead or could lead to proceedings in a court or tribunal if a penalty or sanction could be imposed in those proceedings, and (c) the conduct of proceedings
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Legislation
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MFIPPA
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14(1)(a)
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14(2)(f)
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14(3)(b)
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2(1) personal information
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38(a)
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38(b)
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8(2)(a)
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Subject Index
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Published
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Oct 15, 2004
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Type
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Order
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