ORDER PO-3765

Appeal PA16-366

Ministry of Community Safety and Correctional Services

August 24, 2017

Summary: The Ministry of Community Safety and Correctional Services (the ministry) received an access request under the Freedom of Information and Protection of Privacy Act  (FIPPA ) for copies of any police officers’ notes and witness statements held by the Ontario Provincial Police (the OPP) with respect to a specific motor vehicle accident. The ministry denied access to the records in part, citing the discretionary personal privacy exemption in section 49(b) and the discretionary exemption in section 49(a), in conjunction with section 14(1)(l) (facilitate the commission of an unlawful act).

This order upholds the ministry’s decision under section 49(b) and does not uphold its decision under section 49(a), in conjunction with section 14(1)(l).

Statutes Considered: Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. F.31 , as amended, sections 2(1) (definition of personal information), 49(b), 21(3)(b), 21(2)(d) 21(2)(f), 49(a) and 14(1)(l).

Orders and Investigation Reports Considered: Order PO-3662.

OVERVIEW:

[1]  The Ministry of Community Safety and Correctional Services (the ministry) received an access request under the Freedom of Information and Protection of Privacy Act  (FIPPA  or the Act) for copies of any police officers’ notes and witness statements held by the Ontario Provincial Police (the OPP) with respect to a specific motor vehicle accident.

[2]  The ministry searched for responsive records and issued a decision granting partial access to the responsive records. Access was denied to some portions of the records pursuant to the discretionary law enforcement exemption in section 14 and the mandatory personal privacy exemption in section 21(1). Additionally, some information was withheld on the basis that it was not responsive to the request.

[3]  The requester (now the appellant) appealed the decision of the ministry.

[4]  During mediation, the appellant confirmed that she seeks access to all of the information that has been withheld, except for information that the ministry has identified as being not responsive to the request.

[5]  During mediation, the mediator notified an affected person in order to determine if he wished to consent to the disclosure of the information relating to him. The affected person did not consent to the disclosure of his information.

[6]  As mediation did not resolve the issues in this appeal, the file was transferred to the adjudication stage where an adjudicator conducts an inquiry.

[7]  I added the issues of the possible application of the discretionary personal privacy exemption in section 49(b) and the discretion to refuse requester’s own information in section 49(a) as it relates to section 14, as the records may contain the personal information of the appellant.

[8]  Representations were sought and exchanged between the parties in accordance with section 7 of the IPC’s Code of Procedure and Practice Direction 7. Only the ministry and appellant provided representations. The affected person did not provide representations.

[9]  In this order, I partially uphold the ministry’s decision under section 49(b) and do not uphold its decision under section 49(a), in conjunction with section 14(1)(l).

RECORDS:

[10]  The records remaining at issue consist of the withheld portions of an interview report at page 1 of the records, and police officers’ notes at pages 4 to 7 of the records.

ISSUES:

1. Do the records contain “personal information” as defined in section 2(1) and, if so, to whom does it relate?
2. Does the discretionary exemption at section 49(b) apply to the withheld portions of the records?
3. Does the discretionary exemption at section 49(a), in conjunction with the section 14(1)(l) law enforcement exemption, apply to the withheld portions of pages 4 to 7 of the records?
4. Did the institution exercise its discretion under section 49(b)? If so, should this office uphold the exercise of discretion?

DISCUSSION:

A.  Do the records contain “personal information” as defined in section 2(1) and, if so, to whom does it relate?

[11]  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. That term is defined in section 2(1) 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,

(b)  information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,

(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 if they relate to another individual,

(f)  correspondence sent to an institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to that correspondence that would reveal the contents of the original correspondence,

(g)  the views or opinions of another individual about the individual, and

(h)  the individual’s name if 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;

[12]  The list of examples of personal information under section 2(1) is not exhaustive. Therefore, information that does not fall under paragraphs (a) to (h) may still qualify as personal information. [1]

[13]  To qualify as personal information, the information must be about the individual in a personal capacity. As a general rule, information associated with an individual in a professional, official or business capacity will not be considered to be “about” the individual. [2]

[14]  Even if information relates to an individual in a professional, official or business capacity, it may still qualify as personal information if the information reveals something of a personal nature about the individual. [3]

[15]  To qualify as personal information, it must be reasonable to expect that an individual may be identified if the information is disclosed. [4]

[16]  The ministry claims that the records contain personal information belonging to the affected person and includes his name, address, telephone number, birth date, and driver's licence number, as well as a statement made by the affected person to the investigating officer in connection with the investigating officer's investigation of the motor vehicle accident. The ministry also states that the records contain observations made by the investigating officer of the affected person at the time of the investigation.

[17]  The ministry submits that due to the subject matter of the records, severing identifying information such as names would not serve to remove personal information from the records.

[18]  The appellant did not address this issue in their representations.

Analysis/Findings

[19]  Based on my review of the information at issue in the records, I agree with the ministry that the records contain the personal information of the affected person in his personal capacity as described above by the ministry. The records also contain the personal information of the appellant, including views and opinions about her.

[20]  The ministry has provided the appellant with partial disclosure of the information in the records. The personal information remaining at issue is the personal information of the affected person.

[21]  As the records contain the personal information of the appellant and the affected person, I will consider whether section 49(b) applies.

[22]  Not all of the responsive information remaining at issue in the records is personal information.

[23]  The records also contain information that is not personal information but that related to motor vehicles, including the severance at the bottom of page 4 and at the first ten lines of page 5. As this is not personal information, the personal privacy exemption in section 49(b) cannot apply. I will consider whether the discretionary exemption at section 49(a), in conjunction with the section 14(1)(l) law enforcement exemption, applies to the information in the records that I have found not to be personal information.

B.  Does the discretionary exemption at section 49(b) apply to the withheld portions of the records?

[24]  Section 47(1)  of the Act  gives individuals a general right of access to their own personal information held by an institution. Section 49 provides a number of exemptions from this right.

[25]  Under section 49(b), where a record contains personal information of both the requester and another individual, and disclosure of the information would be an “unjustified invasion” of the other individual’s personal privacy, the institution may refuse to disclose that information to the requester. Since the section 49(b) exemption is discretionary, the institution may also decide to disclose the information to the requester. [5]

[26]  If any of paragraphs (a) to (h) of section 21(3) apply, disclosure of the information is presumed to be an unjustified invasion of personal privacy. Also, section 21(4) lists situations that would not be an unjustified invasion of personal privacy.

[27]  For records claimed to be exempt under section 49(b) (i.e., records that contain the requester’s personal information), this office will consider, and weigh, the factors and presumptions in sections 21(2) and (3) and balance the interests of the parties in determining whether the disclosure of the personal information in the records would be an unjustified invasion of personal. [6]

[28]  The ministry states that it has withheld the records on the basis that to disclose them would presumptively constitute an unjustified invasion of personal privacy of the affected person.

[29]  The ministry submits that the presumption in section 21(3)(b) applies, because the records relate to an OPP investigation initiated as a result of the motor vehicle accident. It states that the records were created by the investigating officer during the time of, and for the purpose of the investigation and that they include charges that were laid pursuant to the officer's investigation.

[30]  Alternately, the ministry also claims section 21(2)(f) in withholding access to the same records. The ministry relies on Order P-1618, where the IPC found that the personal information provided by individuals who are “complainants, witnesses or suspects" as part of their contact with the OPP is "highly sensitive" for the purpose of section 21(2)(f). The ministry submits that this reasoning should be applied to the records, as the affected person is a suspect, who was subsequently charged.

[31]  The appellant states that she has commenced a personal injury claim against the affected person in connection with a motor vehicle accident. She refers to the Motor Vehicle Collision Report that states that after her vehicle was struck from behind, both vehicles pulled over to the shoulder and after a brief discussion, the affected person got in his vehicle and left the scene.

[32]  The appellant states that the affected person’s vehicle was located a short time later abandoned with heavy damage in a parking lot. She states that the affected person was charged with careless driving and failing to remain and that he was convicted of the Highway Traffic Act offence of "Fail to Share Road When Overtaking" arising from this motor vehicle accident.

[33]  The appellant submits that in the circumstances it would assist the administration of justice, namely her personal injury civil claim, if the redacted information were to be disclosed.

Analysis/Findings

[34]  Based on my review of the parties’ representations and the records, I agree with the ministry that the presumption in section 21(3)(b) applies. This section reads:

A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy where 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.

[35]  As confirmed by the appellant, the records were compiled as part of a law enforcement investigation into the motor vehicle accident between the affected person and the appellant as described above.

[36]  Even if no criminal proceedings were commenced against any individuals, section 21(3)(b) may still apply. The presumption only requires that there be an investigation into a possible violation of law. [7] The presumption can also apply to records created as part of a law enforcement investigation where charges are subsequently withdrawn. [8]

[37]  The ministry also relies on the factor that favours privacy protection in section 21(2)(f), which reads:

A head, in determining whether a disclosure of personal information constitutes an unjustified invasion of personal privacy, shall consider all the relevant circumstances, including whether,

the personal information is highly sensitive.

[38]  To be considered highly sensitive, there must be a reasonable expectation of significant personal distress if the information is disclosed. [9]

[39]  The affected person was a suspect in the case of the motor vehicle accident. The records primarily focus on the affected person’s actions after the accident. I find that this information is highly sensitive information related to the affected person and that the factor in section 21(2)(f) applies.

[40]  It appears that the appellant is relying on the factor in section 21(2)(d) that favours disclosure. This section reads:

A head, in determining whether a disclosure of personal information constitutes an unjustified invasion of personal privacy, shall consider all the relevant circumstances, including whether,

the personal information is relevant to a fair determination of rights affecting the person who made the request.

[41]  As noted above, the appellant has commenced a personal injury claim against the affected person and a named company in connection with the motor vehicle accident that is the subject of the records. She submits that disclosure would assist in the administration of justice, namely in her personal injury claim.

[42]  For section 21(2)(d) to apply, the appellant must establish that:

1. the right in question is a legal right which is drawn from the concepts of common law or statute law, as opposed to a non-legal right based solely on moral or ethical grounds; and
2. the right is related to a proceeding which is either existing or contemplated, not one which has already been completed; and
3. the personal information which the appellant is seeking access to has some bearing on or is significant to the determination of the right in question; and
4. the personal information is required in order to prepare for the proceeding or to ensure an impartial hearing. ^[10]

[43]  Based on my review of the records, I find that the factor in section 21(2)(d) does not apply. The remaining personal information in the records is primarily about the affected person’s actions after the accident. I find that it does not have some bearing on the appellant’s lawsuit nor is it significant to the determination of the appellant’s lawsuit. As well, I find that disclosure of the affected person’s personal information is not required in order to prepare for the proceeding or to ensure an impartial hearing.

[44]  Therefore, I find that the factor in section 21(2)(d) that favours disclosure does not apply.

[45]  As stated above, for records claimed to be exempt under section 49(b) (i.e., records that contain the requester’s personal information), this office will consider, and weigh, the factors and presumptions in sections 21(2) and (3) and balance the interests of the parties in determining whether the disclosure of the personal information in the records would be an unjustified invasion of personal privacy.

[46]  In balancing the applicable factor and presumption in this appeal in sections 21(2)(f) and 21(3)(b), both of which favour privacy protection, I find that disclosure of the personal information in the records would be an unjustified invasion of the personal privacy of the affected person. Therefore, this information is exempt under section 49(b), subject to my review of the ministry’s exercise of discretion.

C.  Does the discretionary exemption at section 49(a), in conjunction with the section 14(1)(l) law enforcement exemption, apply to the withheld portions of pages 4 to 7 of the records?

[47]  Section 47(1) gives individuals a general right of access to their own personal information held by an institution. Section 49 provides a number of exemptions from this right.

Section 49(a) reads:

A head may refuse to disclose to the individual to whom the information relates personal information,

where section 12, 13, 14, 14.1, 14.2, 15, 16, 17, 18, 19, 20 or 22 would apply to the disclosure of that personal information.

[48]  Section 49 (a) of the Act  recognizes the special nature of requests for one’s own personal information and the desire of the legislature to give institutions the power to grant requesters access to their personal information. [11]

[49]  Where access is denied under section 49(a), the institution must demonstrate that, in exercising its discretion, it considered whether a record should be released to the requester because the record contains his or her personal information.

[50]  In this case, the institution relies on section 49(a) in conjunction with section 14(1)(l), which states:

(1) A head may refuse to disclose a record where the disclosure could reasonably be expected to,

(l)  facilitate the commission of an unlawful act or hamper the control of crime.

[51]  The ministry states that it has applied section 14(1)(1) for the following reasons:

(a) Internal Police Code: …Police codes are widely used internally as part of OPP operations. [12] The ministry maintains that it has withheld the codes in accordance with its usual practice, and in particular because the disclosure of the codes could make it easier for individuals carrying out criminal activities to have internal knowledge of how systems within the OPP operate. The ministry maintains that disclosure of internal police codes could jeopardize the security of law enforcement systems and the safety of the OPP staff identified by them;

(b) Public Co-operation: The records contain information related to an affected person, who is identified as part of an OPP law enforcement investigation. The ministry submits that this information is inherently sensitive, and for that reason alone, should not be disclosed in the manner contemplated by this appeal, (i.e., without the affected person's consent). The ministry is concerned that the disclosure of the records would discourage members of the public from co-operating with the OPP, if the public believes that the confidentiality of the information they provide will not be safeguarded. The ministry submits this type of outcome could be expected to hamper the ability of the OPP [and] interfere with its law enforcement operations, which in turn would either facilitate the commission of crime or hamper its control; and,

(c) Internal Communications: The records include confidential law enforcement information documenting the steps the investigating member of the OPP used for the purpose of conducting the investigation, and which, when placed in the shared records data base, could be used for communications purposes with other OPP law enforcement personnel (i.e., bottom of page 4). By recording this information, members of the OPP can subsequently retrieve it in the event that there are future interactions with the appellant, or the records are otherwise relevant for a law enforcement purpose. The ministry is concerned that members of the OPP will be less likely to record information and to communicate candidly with one another, if the records that they create are more likely to be disclosed in the manner contemplated by this appeal. The ministry submits that this outcome would also have the subsequent result of facilitating crime or hampering its control.

[52]  The appellant did not address this issue in her representations.

Analysis/Representations

[53]  Generally, the law enforcement exemption must be approached in a sensitive manner, recognizing the difficulty of predicting future events in a law enforcement context. [13]

[54]  It is not enough for an institution to take the position that the harms under section 14 are self-evident from the record or that the exemption applies simply because of the existence of a continuing law enforcement matter. ^[14] The institution must provide detailed and convincing evidence about the potential for harm. It must demonstrate a risk of harm that is well beyond the merely possible or speculative, although it need not prove that disclosure will in fact result in such harm. How much and what kind of evidence is needed will depend on the type of issue and seriousness of the consequences. ^[15]

[55]  I have found that the personal information of the affected person in the records is subject to the personal privacy exemption in section 49(b). I will now consider whether section 14(1)(l) applies to the remaining responsive information in the records.

[56]  The ministry has identified section 14(1)(l) as an exemption on all of the pages at issue, except page 1. As well, pages 6 and 7 have been identified as containing non-responsive information. All of these pages are hand-written police officers’ notes.

[57]  I asked the ministry to identify which specific portions of the records contain information which they claim is subject to section 14(1)(l). Of the four pages where section 14(1)(l) has been listed (pages 4 to 7), the ministry identified only the following as containing section 14(1)(l) information:

• page 4, top redaction and 1st 3 lines at bottom redaction, and
• page 5, location not specified.

[58]  I have reviewed the records and I cannot locate any information in pages 4 to 7, including the specific severances mentioned by the ministry on page 4, that contains police codes or any type of information that could reasonably be expected to facilitate the commission of an unlawful act or hamper the control of crime.

[59]  I find that the remaining information at issue is general information about the accident and the aftermath and is not information disclosure of which could reasonably be expected to facilitate the commission of an unlawful act or hamper the control of crime.

[60]  In particular, although the ministry has indicated that the records contain police codes, which could qualify as section 14(1)(l) information, from my review of the pages at issue, I cannot locate this information therein. I also note that the ministry has not specifically identified on the records where section 14(1)(l) information, including police codes, is located.

[61]  As well, the ministry has indicated that the records contain “public co-operation” and “internal communications” information. Specifically, concerning “public co-operation” information I find that disclosure of information obtained from suspects or other involved persons by a law enforcement agency in a law enforcement investigation could not reasonably be expected to facilitate the commission of an unlawful act or hamper the control of crime under section 14(1)(l).

[62]  I rely on Order PO-3662, where the records included the same type of records as those that are at issue in this appeal, namely, police officers’ notes. In that order, as quoted below, the ministry submitted that section 14(1)(l) applied to “public co-operation” and “internal communications” information for essentially the same reasons as it did in this appeal. The ministry in that order submitted that:

(a) [Public Co-operation] The responsive information in the records relates to individuals identified as being a complainant, witnesses and a victim. The ministry submits that members of the public seek the assistance of the police, on the understanding that the information they provide is often highly sensitive, and for that reason alone, would never be disclosed in the manner contemplated by this appeal. The ministry is concerned that the disclosure of the records could discourage members of the public from seeking police assistance out of concern that the confidentiality of their information will not be safeguarded. The ministry submits that such an outcome could be expected to either facilitate the commission of crime or hamper its control; and,

(b) [Internal Communications] The records include confidential law enforcement information that members of the OPP used for the purpose of documenting their investigations, and for internal communications. The ministry is concerned that members of the OPP will be less likely to record information and to communicate candidly with one another, if the records that they create are more likely to be disclosed. The ministry submits that this outcome could also have the result of facilitating crime or hampering its control. [Emphasis added by me].

[63]  In Order PO-3662, Adjudicator Steven Faughnan stated:

With respect to the application of section 14(1)(l) I find that the proposition suggested by the ministry is far too broad. Taken to its logical conclusion this would mean that this exemption would apply to all information provided in a criminal investigation, a result that could not have been contemplated or intended by the legislature in enacting this statutory provision.

I also find that the evidence tendered by the ministry in this appeal with respect to the application of section 14(1)(l) is highly speculative. The keeping of written records is an integral part of policing, and I am not satisfied that disclosing the records at issue in this appeal would interfere with that practice. I also do not accept that disclosure of the remaining information at issue would somehow facilitate the commission of an unlawful act or hamper the control of crime.

Accordingly, I find that section 14(1)(l) does not apply.

[64]  I adopt these findings of Adjudicator Faughnan, and also find that the ministry’s propositions as to the application of section 14(1)(l) to “public co-operation” information is far too broad. I agree that taken to its logical conclusion this would mean that this exemption would apply to all information provided in a criminal investigation, a result that could not have been contemplated or intended by the legislature in enacting this statutory provision.

[65]  Relying on Order PO-3662, I also find that the evidence tendered by the ministry in this appeal with respect to the application of section 14(1)(l) to “internal communications” is highly speculative. I agree with Adjudicator Faughnan that the keeping of written records is an integral part of policing. I am also not satisfied that disclosing the records at issue in this appeal would interfere with that practice and that disclosure of the remaining information at issue would somehow facilitate the commission of an unlawful act or hamper the control of crime.

[66]  Accordingly, I find that the ministry has not provided “detailed and convincing” evidence to establish a “reasonable expectation of harm” with respect to section 14(1)(l). Therefore, section 49(a), in conjunction with the section 14(1)(l) law enforcement exemption, does not apply in this appeal.

D.  Did the institution exercise its discretion under section 49((b)? If so, should this office uphold the exercise of discretion?

[67]  The section 49(b) exemption is discretionary and permits an institution to disclose information, despite the fact that it could withhold it. An institution must exercise its discretion. On appeal, the Commissioner may determine whether the institution failed to do so.

[68]  In addition, the Commissioner may find that the institution erred in exercising its discretion where, for example,

• it does so in bad faith or for an improper purpose
• it takes into account irrelevant considerations
• it fails to take into account relevant considerations.

[69]  In either case this office may send the matter back to the institution for an exercise of discretion based on proper considerations. [16] This office may not, however, substitute its own discretion for that of the institution [section 54(2)].

[70]  Relevant considerations may include those listed below. However, not all those listed will necessarily be relevant, and additional unlisted considerations may be relevant: [17]

• the purposes of the Act , including the principles that
• information should be available to the public
• individuals should have a right of access to their own personal information
• exemptions from the right of access should be limited and specific
• the privacy of individuals should be protected
• the wording of the exemption and the interests it seeks to protect
• whether the requester is seeking his or her own personal information
• whether the requester has a sympathetic or compelling need to receive the information
• whether the requester is an individual or an organization
• the relationship between the requester and any affected persons
• whether disclosure will increase public confidence in the operation of the institution
• the nature of the information and the extent to which it is significant and/or sensitive to the institution, the requester or any affected person
• the age of the information
• the historic practice of the institution with respect to similar information.

[71]  The ministry states that it has exercised its discretion based on the following considerations:

(a) The public policy interest in safeguarding the privacy [of] an affected person, whose personal information has been collected as part of an OPP law enforcement investigation, and who has not consented to its disclosure;

(b) The concern that the disclosure of the records would jeopardize public confidence in the OPP, especially in light of the expectation that information the public provides to the police during the course of a law enforcement investigation will be kept confidential in accordance with the wishes of affected persons; and,

(c) The OPP has acted in accordance with its usual practices, in severing law enforcement records containing an affected person's personal information.

[72]  The appellant did not provide representations on the ministry’s exercise of discretion.

Analysis/Findings

[73]  Based on my review of the information I have found subject to section 49(b) and the ministry’s representations, I find that the ministry exercised its discretion in a proper manner, taking into account relevant considerations and not taking into account irrelevant considerations in denying access to the personal information of the affected person in the records.

[74]  Accordingly, the personal information of the affected person is exempt by reason of section 49(b).

ORDER:

1. I order the ministry to disclose the information in the records to the appellant that I have found not exempt by September 29, 2017 but not before September 22, 2017. For ease of reference, I have provided the ministry with a highlighted copy of the records highlighting the information to be disclosed to the appellant.
2. I uphold the ministry’s decision to withhold the remaining information at issue in the records.

Original Signed by:		August 24, 2017
Diane Smith
Adjudicator