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Document
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M-451
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Institution/HIC
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Metropolitan Toronto Police Services Board
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Summary
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NATURE OF THE APPEAL: This is an appeal under the Municipal Freedom of Information and Protection of Privacy Act (the Act ). The Metropolitan Toronto Police Services Board (the Police) received a request for access to "records for 31 Division and all Metro" with respect to the requester. The Police identified 70 records as responsive to the request and granted the requester access to 18 records. The Police relied on the following exemptions to deny access to one record in full and to parts of the remaining 51 records: law enforcement - sections 8(1)(c) and (l) invasion of privacy - sections 14(1) and 38(b) The Police also indicated that certain portions of the records were not disclosed as they are not responsive to the request. The requester appealed the decision of the Police, and a Notice of Inquiry was provided to the Police and the requester. Representations were received from both parties. PRELIMINARY ISSUE: RECORDS NOT RESPONSIVE TO THE REQUEST The Police indicate that a number of records or parts of records which have been withheld from the appellant do not contain information responsive to the request. Although the Notice of Inquiry requested submissions from both parties on this issue, neither party addressed it in their representations. I have reviewed these records and, with the exception of Record 36 and part of Record 23 which, in my view, contain responsive information, I agree that the records or parts of records identified by the Police do not contain any information which is responsive to the request. Therefore, this information falls outside the scope of this appeal. DISCUSSION: LAW ENFORCEMENT The Police claim that sections 8(1)(c) and (l) apply to the information exempted from Records 7, 14 and 66. These sections read: A head may refuse to disclose a record if the disclosure could reasonably be expected to, (c) reveal investigative techniques and procedures currently in use of likely to be used in law enforcement; (l) facilitate the commission of an unlawful act or hamper the control of crime. The Police submit that the portions of the records to which these sections have been applied would encourage and enable a person to avoid apprehension. In order to constitute an "investigative technique or procedure" for the purposes of section 8(1)(c), it must be the case that disclosure of the technique or procedure to the public would hinder or compromise its effective use. The fact that the particular technique or procedure is generally known to the public would normally lead to the conclusion that disclosure would not compromise its effective use and, accordingly, that section 8(1)(c) would not apply (Order 170). I have reviewed the records and I am not satisfied that the disclosure of the information which has been withheld would hinder or compromise its effective use. Additionally, I am not satisfied that disclosure of this information would facilitate the commission of an unlawful act or hamper the control of crime. Accordingly, I find that the records do not qualify for exemption under sections 8(1)(c) or (l). As no other exemptions have been claimed for these records, they should be disclosed to the appellant. INVASION OF PRIVACY Under section 2(1) of the Act , "personal information" is defined, in part, to mean recorded information about an identifiable individual. The Police submit that the records contain the personal information of the appellant and other individuals. I agree. However, certain information which the Police have severed from the records does not relate to another identifiable individual. This information does not qualify as personal information of any other individual and, therefore, cannot be exempted from disclosure pursuant to section 38(b). As no other exemptions have been claimed for this information and no mandatory exemptions apply, it should be disclosed to the appellant. The Police have applied both section 14(1) and section 38(b) to withhold information from the appellant. Although it is not entirely clear where section 14(1) as opposed to section 38(b) has been used, it does appear that the exemptions have been applied to withhold different information from the same records. It seems that where the severed information is a name or a few words which on their own relate solely to individuals other than the appellant the Police have applied section 14(1), and section 38(b) was applied where the personal information of the appellant and other individuals is intertwined. Both section 14(1) and section 38(b) are designed to protect personal privacy, but the two sections are very different: section 14(1) prohibits disclosure of personal information (except in certain circumstances), while section 38(b) recognizes the right of the individual to obtain access to information about him or herself by introducing a balancing principle, requiring the Police to 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. The records which are the subject of this appeal have been identified as responsive to the request by the Police because they contain information which relates to the appellant. In my view, it is both unfair to the appellant and impractical to consider various parts of the same record under these two very different exemptions. Where the records in which the information appears also contain the personal information of the appellant, a number of previous orders have uniformly come to the conclusion that section 14(1) of the Act is not available to exempt this information from disclosure, and the appropriate consideration of each severance to the records involves section 38(b) (Order M-352). I agree, and will consider these records under section 38(b) only. A complex privacy problem arises when one individual seeks access to records which contain information about him or herself and another individual. Under section 38(b) of the Act , the Police have the discretion to deny the requester access to personal information of other individuals. The exemption speaks of an unjustified invasion of personal privacy. Therefore, to simply exempt from access all records or parts thereof which contain personal information relating to another individual is not satisfactory. While the privacy interest in one's personal information is impo
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Legislation
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MFIPPA
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14(3)(b)
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38(b)
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8(1)(c)
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Subject Index
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Published
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Jan 30, 1995
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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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