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Document
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M-265
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Institution/HIC
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Kingston Police Services Board
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Summary
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ORDER BACKGROUND: The Kingston Police Services Board (the Police) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ), for access to records relating to submissions made by police officers and civilian employees to the Chief of Police or his delegate about "difficulties of their jobs within the Kingston Police Force". The Police identified records which were responsive to the request and provided access to one of these documents in full. The Police, however, denied access to the two remaining records, one in whole and the other in part, based on the exemptions contained in sections 7(1), 8(1)(c), 8(1)(i), 11(f) and 11(g) of the Act . The requester subsequently clarified his request and the Police provided full access to an additional record which responded to the clarified request. The requester appealed the Police's decision to deny access to the two records which had not been disclosed. 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. Both parties made representations. In their representations the Police withdrew their reliance upon the exemptions provided in sections 11(f) and 11(g) of the Act . Those portions of the record for which sections 8(1)(c) and (i) of the Act were claimed are included in my discussion of Issue A and, accordingly, will not be dealt with further in this order. The records which remain at issue in this appeal are the undisclosed portions of two documents which relate to a strategic planning process undertaken by the Police, described as follows: 1. A six-page document entitled "Section II - Patrol Audit Report"; and 2. Those portions of an 18 page document not disclosed which were produced from a computer record in the possession of the Police, consisting of internal employee suggestions. ISSUES: The issues arising in this appeal are: A. Whether the discretionary exemption provided by section 7(1) of the Act applies to the records. B. If the answer to Issue A is yes, whether there is a compelling public interest in the disclosure of the records that clearly outweighs the purpose of the exemption, pursuant to section 16 of the Act . SUBMISSIONS/CONCLUSIONS: ISSUE A: Whether the discretionary exemption provided by section 7(1) of the Act applies to the records. Section 7(1) of the Act reads: A head may refuse to disclose a record if the disclosure would reveal advice or recommendations of an officer or employee of an institution or a consultant retained by an institution. "Advice" pertains to the submission of a suggested course of action which will ultimately be accepted or rejected by its recipient in the deliberative process (Order 118). "Recommendations" should be viewed in the same vein (Order P-348). It its representations, the Police maintain that all of the portions of the records withheld consist of recommendations and that: Each one of the recommendations not disclosed contain[s] more than mere information ... and suggest[s] a course of action which, upon the completion of a study or within the confines of a larger project, will ultimately be accepted or rejected. I have carefully reviewed the records and the representations of the parties. In my view, those portions of the records which were not disclosed to the appellant suggest courses of action which will ultimately be subject to acceptance or rejection by the Police in its deliberative process and, as such, qualify for exemption under section 7(1) of the Act . Section 7(2) of the Act lists certain mandatory exceptions to the section 7(1) exemption. Specifically, sections 7(2)(a), (b) and (i) state: Despite subsection (1), a head shall not refuse under subsection (1) to disclose a record that contains, (a) factual material; (b) a statistical survey; (i) a report of a committee or similar body within an institution, which has been established for the purpose of preparing a report on a particular topic; The Police indicate in their representations that all factual and statistical survey material responsive to the appellant's request has already been disclosed to the appellant. I have examined the records and I agree that those portions which have been withheld do not fall within either of the exceptions set out in sections 7(2)(a) and (b) of the Act . In Order 168, Commissioner Tom Wright discussed the application of the exception provided by section 13(2)(j) of the Freedom of Information and Protection of Privacy Act which is similar in wording to section 7(2)(i) of the Act . At page 7 of that Order, he states: Subsection 13(2)(j) is unusual in the context of the Act in that it is a mandatory exception to the application of an exemption for a type of document, a report . In other words, even if the record at issue contains advice or recommendations pursuant to subsection 13(1), the head must disclose the entire record if it is a report of an interdepartmental committee task force or similar body, or of a committee or task force within an institution, which has been established for the purpose of preparing a report on a particular topic, unless the report is to be submitted to the Executive Council or its committees. For the purposes of this appeal, I adopt the reasoning set forth in Order 168. In my view, in order for the exception provided by section 7(2)(i) of the Act to apply, it is necessary to establish that: 1. The document must be a "report" within the meaning of the Act . 2. The report must have been prepared by a committee or similar body within an institution. 3. The committee or similar body must have been established for the purpose of preparing a report on a particular topic. I will evaluate each part of the test as it relates to each record separately, beginning with the record entitled "Section II - Patrol Audit Report". Part One of the Test The word "report" is not defined in the Act . However, it has been held in a number of previous orders issued by the Commissioner's office that for a record to be a "report" it must consist of
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Legislation
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MFIPPA
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7(1)
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7(2)(i)
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Section 16
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Subject Index
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Published
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Feb 09, 1994
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Type
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Order
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Information and Privacy Commissioner of Ontario. All Rights Reserved.
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