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Document
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M-300
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File #
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M-9200471
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Institution/HIC
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Port Hope Police Services Board
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Summary
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ORDER BACKGROUND: The Port Hope Police Services Board (the Police) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for a copy of all files relating to all investigations, prosecutions and records pertaining to the requester. The Police identified 835 pages of responsive records and provided full access to 220 pages. The Police withheld 367 pages in their entirety and 248 in part pursuant to sections 7(2)(a), 8(1)(e), 8(1)(g), 9(1)(d), 12, 13, and 14 of the Act , and indicated that one record was contained in the Crown Brief. The requester appealed the decision of the Police. During mediation, the appellant clarified that he was only seeking access to records which contained his personal information. Further mediation was not successful and notice that an inquiry was being conducted to review the decision of the Police was sent to the Police and the appellant. Representations were received from the Police. The records at issue in this appeal are the 615 pages to which the Police denied access in whole or in part. They comprise 39 documents of various lengths, which are listed in Appendix "A" to this order. PERSONAL INFORMATION: Section 2(1) of the Act states, in part: "personal information" means recorded information about an identifiable individual, ... Having reviewed the records at issue in this appeal, I find that they all contain information which satisfies the definition of personal information in section 2(1) of the Act . Though not every record is entirely "about" the appellant, I find that each of the records at issue in this appeal contains, at least in part, personal information of the appellant. Additionally, I find that all of the records for which the Police claimed section 14 also contain the personal information of individuals other than the appellant. RECORDS 1-6, 8, 10, 12-14, 19-32 and 34-39: In the majority of these records, the Police have granted the appellant access to each part of the record which contains reference to or information about himself. In my view, where the Police have withheld information which is not about the appellant, that information is not the appellant's personal information and is not responsive to the request. These parts of the record are, therefore, outside of the scope of this appeal. The Police have also withheld parts of these records which, in my view, contain personal information of the appellant and other identifiable individuals. Section 36(1) of the Act gives individuals a general right of access to any personal information about themselves in the custody or under the control of an institution. However, this right of access is not absolute. Section 38 of the Act provides a number of exemptions to this general right of access. One such exemption is found in section 38(b) of the Act , which reads: A head may refuse to disclose to the individual to whom the information relates personal information, if the disclosure would constitute an unjustified invasion of another individual's personal privacy; Section 38(b) introduces a balancing principle. The Police must look at the information and weigh the requester's right of access to his or her personal information against the rights of other individuals to the protection of their personal privacy. If the Police determine that the disclosure of the information would constitute an unjustified invasion of the personal privacy of other individuals, then section 38(b) gives the Police the discretion to deny the requester access to the personal information. In my view, where the personal information relates to the requester, the onus should not be on the requester to prove that disclosure of the personal information would not constitute an unjustified invasion of the personal privacy of another individual. Since the requester has a right of access to his/her own personal information, the only situation under section 38(b) in which he/she can be denied access to the information is if it can be demonstrated that disclosure of the information would constitute an unjustified invasion of another individual's personal privacy. Sections 14(2), (3) and (4) of the Act provide guidance in determining whether disclosure of personal information would result in an unjustified invasion of an individual's personal privacy. Section 14(3) of the Act lists the types of information the disclosure of which is presumed to constitute an unjustified invasion of personal privacy. Section 14(3)(b) states: A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy if the personal information, was compiled and is identifiable as part of an investigation into a possible violation of law, except to the extent that disclosure is necessary to prosecute the violation or to continue the investigation; In my view, all of the above-noted personal information was compiled and is identifiable as a part of an investigation into a possible violation of law, namely the Criminal Code of Canada , and I find that disclosure of this information would constitute an unjustified invasion of personal privacy under section 14(3)(b). I have considered section 14(4) of the Act and find that none of the personal information at issue in this appeal falls within the ambit of this provision. Accordingly, I find that the remaining portions of these records qualify for exemption under section 38(b) of the Act . Section 38(b) is a discretionary exemption. I have reviewed the representations of the Police regarding its exercise of discretion to deny access to the records. I find nothing to indicate that the exercise of discretion was improper and I would not alter it on appeal. RECORDS 7, 9, 11, 16, 18 and 33: The Police submit that section 8(1)(g) of the Act applies to these records. This section reads: A head may refuse to disclose a record if the disclosure could reasonably be expected to, interfere with the gathering of or reveal law enforcement intelligence information respecting organizations or persons; In my view, for the purposes of section 8(1)(g) of the Act , "intelligence" information may be described as information gathered by a law enforcement agency in a covert manner with respect to ongoing efforts
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Legislation
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MFIPPA
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14(3)(b)
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18(3)
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2(1) personal information
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38(b)
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8(1)(g)
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Section 12
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Subject Index
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Signed by
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Holly Big Canoe
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Published
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Apr 08, 1994
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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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