ORDER PO-3875

Appeal PA16-327

Ministry of Community Safety and Correctional Services

August 30, 2018

Summary: The appellant made an access request under the Act for records relating to himself with the Ontario Chief Firearms Office (the CFO). The ministry located responsive records and granted the appellant partial access to them. The ministry withheld portions of the records under sections 49(a), read with sections 14(1)(c), (d), (i) and (l) (law enforcement), and 49(b) (personal privacy). The ministry also withheld portions of the records as not responsive. The appellant appealed the ministry’s decision and claimed that additional responsive records should exist. In this order, the adjudicator upholds the ministry’s decision and dismisses the appeal.

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), 14(1)(c), 21(1), 21(2)(f), 21(3)(b), 24, 49(a) and (b).

Orders and Investigation Reports Considered: Order PO-2582.

OVERVIEW:

[1]  The appellant submitted a request under the Freedom of Information and Protection of Privacy Act  (the Act ) to the Ministry of Community Safety and Correctional Services (the ministry) for all records found in the Ontario Chief Firearms Office (the CFO) relating to himself for the time period between January 1, 1998 and April 11, 2016.

[2]  After locating responsive records, the ministry issued an access decision to the appellant granting him partial access to them. The ministry advised the appellant it withheld portions of the records under the discretionary exemptions in sections 49(a), read with sections 14(1)(c), (d), (i) and (l) (law enforcement), and 49(b) (personal privacy) of the Act . In support of its personal privacy claim, the ministry raised the application of the factor weighing against disclosure in section 21(2)(f) (highly sensitive) and the presumption in section 21(3)(b) (law investigation) to the records. Additionally, the ministry advised the appellant it withheld portions of the records as not responsive.

[3]  The appellant appealed the ministry’s decision to this office.

[4]  During mediation, the appellant claimed additional responsive records ought to exist, thereby raising the reasonableness of the ministry’s search as an issue. The ministry consulted with the CFO and advised the mediator that it had located all responsive records and no additional records exist. The appellant maintains his belief that additional responsive records exist.

[5]  The appellant also confirmed his interest in pursuing access to all of the information the ministry withheld from disclosure.

[6]  Mediation did not resolve the appeal and the file moved to the adjudication stage of the appeal process, where an adjudicator conducts an inquiry. I am the adjudicator for this appeal. I began my inquiry by inviting the ministry to respond to a Notice of Inquiry. The ministry submitted representations. I then invited the appellant to submit representations in response to the ministry’s representations, which I shared with the appellant in accordance with Practice Direction Number 7 of the IPC’s Code of Procedure. The appellant submitted representations. I then decided to notify five individuals whose interests may be affected by the disclosure of the records (the affected parties). One affected party responded to my notification and advised they did not consent to the disclosure of any information relating to them.

[7]  In the discussion that follows, I uphold the ministry’s decision and dismiss the appeal.

RECORDS:

[8]  The 46 pages of records at issue consist of Client Application documents, such as licences, applications, authorizations and events, issued by the Royal Canadian Mounted Police (RCMP).

PRELIMINARY ISSUE

[9]  In his representations, the appellant raises a number of issues outside of the scope of his appeal. Specifically, the appellant submits I have the “autonomy to decide” whether the content of the records or the CFO’s database contains criminal slander, falsehoods, unfounded or unsubstantiated information, medical records or other privileged information. I confirm to the appellant that I cannot decide these issues. My jurisdiction in this appeal is limited to whether the appellant is entitled to access the information the ministry withheld from disclosure and whether the ministry conducted a reasonable search for responsive records.

[10]  For similar reasons, I cannot determine whether the ministry or the CFO’s conduct in relation to the appellant was appropriate or not. I also confirm I do not have the authority to “reprimand” the CFO or the ministry for their alleged conduct in relation to the appellant.

[11]  Finally, I note the appellant makes a number of allegations relating to potential privacy breaches. Again, the issues before me are access to the withheld information and the ministry’s search for records. I cannot make a determination regarding any alleged privacy breaches. [1]

ISSUES:

1. What is the scope of the request? What records are responsive to the request?
2. Do the records contain personal information as defined in section 2(1) and, if so, to whom does it relate?
3. Does the discretionary exemption at section 49(b) apply to the personal information at issue?
4. Does the discretionary exemption at section 49(a), read with section 14(1)(c), apply to the information at issue?
5. Did the ministry exercise its discretion under sections 49(a), read with sections 14(1)(c), and 49(b)? If so, should the IPC uphold the exercise of discretion?
6. Did the ministry conduct a reasonable search for records?

DISCUSSION:

Issue A:   What is the scope of the request? What records are responsive to the request?

[12]  The only information the ministry identified as not responsive to the request is the lower portions of Records 1 to 32, which identifies the Report Number and the date printed.

[13]  Section 24  of the Act  imposes certain obligations on requesters and institutions when submitting and responding to requests for access to records. This section states, in part,

(1) A person seeking access to a record shall,

(a) make a request in writing to the institution that the person believes has custody or control of the record;

(b) provide sufficient detail to enable an experienced employee of the institution, upon a reasonable effort, to identify the record;

…

(2) If the request does not sufficiently describe the record sought, the institution shall inform the applicant of the defect and shall offer assistance in reformulating the request so as to comply with subsection (1).

Institutions should adopt a liberal interpretation of a request, in order to best serve the purpose and spirit of the Act . Generally, ambiguity in the request should be resolved in the requester’s favour. [2]

[14]  To be considered responsive to the request, records must reasonably relate to the request. [3]

[15]  I reviewed the appellant’s original request. The appellant specifically identified the types of information he seeks access to. The appellant stated that he seeks access to the names of complainants and any supporting complaints, the name of any investigating officers, whether any access requests were filed under the Act  for the appellant’s personal information, any “relevant or useful information” relating to the appellant and any other allegations or complaints made in relation to the appellant and another individual.

[16]  The ministry submits it adopted a liberal interpretation of the request. The ministry submits it included all the records relating to the appellant in its possession.

[17]  The appellant did not address this issue in his representations.

[18]  As stated above, the ministry withheld information relating to the Report Number and the date printed as not responsive from Records 1 to 32. I reviewed this information and find it is not responsive to the appellant’s request. The appellant clearly identified the information he pursues access to in his original request. These portions are not reasonably related to his request. Therefore, I find they are not responsive to the appellant’s original request and I uphold the ministry’s decision to withhold them on that basis.

Issue B:   Do the records contain personal information as defined in section 2(1) and, if so, to whom does it relate?

[19]  In order to determine which sections of the Act  may apply, it is necessary to describe whether the record contains personal information and, if so, to whom it relates. The term personal information 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 where 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 individuals 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 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. [4] To qualify as personal information, the information must be about the individual in a personal capacity and it must be reasonable to expect an individual may be identified if the information is disclosed. [5]

[20]  The ministry submits the records contain personal information relating to identifiable individuals, including their names and other identifying information such as their phone numbers, addresses and their involvement with the appellant’s application to hold a firearm licence. The ministry states the CFO collected this information as part of its assessment of the appellant’s application.

[21]  The appellant does not directly address this issue in his representations. However, the appellant claims the records contain his personal information.

[22]  I reviewed the records at issue. I am satisfied the records contain personal information within the meaning of section 2(1) relating to the appellant. Specifically, the records contain the appellant’s name, birthdate, address, gender, telephone number and firearms licence number. In addition, the records contain personal information relating to five other individuals. The information relating to these other individuals consists of their names, birth dates, home addresses and telephone numbers. The information also reveals these individuals’ involvement in the appellant’s firearm application. I find this information qualifies as the personal information of the appellant and other affected parties under paragraphs (a), (b), (c), (d) and (h) as well as the introductory wording of the definition of personal information in section 2(1)  of the Act .

[23]  Having found that the records contain the mixed personal information of the appellant and other affected parties, I will consider the appellant’s right of access to the information withheld by the ministry under sections 49 (a) and (b) of the Act .

Issue C:   Does the discretionary exemption at section 49(b) apply to the personal information at issue?

[24]  The ministry claims the application of section 49(b) to the personal information relating to affected parties on the following pages: 7, 10, 11, 15, 20, 30, 34, 40, 41 and 42.

[25]  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.

[26]  Under section 49(b), where a record contains the 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. Section 49(b) states,

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

where the disclosure would constitute an unjustified invasion of another individual’s personal privacy.

Even if the personal information falls within the scope of section 49(b), the ministry may exercise its discretion to disclose the information to the appellant after weighing the appellant’s right of access to his own personal information against the affected parties’ right to protection of their privacy. I discuss the ministry’s exercise of discretion, below, under Issue E.

[27]  Section 21 provides guidance in determining whether disclosure would be an unjustified invasion of personal privacy under section 49(b). If the information fits within any of the paragraphs of section 21(1) or 21(4), disclosure is not an unjustified invasion of personal privacy and the information is not exempt under section 49(b). Otherwise, in determining whether the disclosure of the personal information in the records would be an unjustified invasion of personal privacy under section 49(b), this office will consider and weigh the factors and presumptions in sections 21(2) and 21(3) and balance the interests of the parties. [6]

[28]  During the inquiry, I notified the five affected parties whose personal information is contained in the records. Four individuals did not respond to my notification. One individual responded and confirmed they do not consent to the disclosure of any personal information relating to them.

[29]  The ministry submits it applied the presumption in section 21(3)(b) to the personal information at issue in Record 10. Section 21(3)(b) states,

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.

The ministry submits the information withheld under section 49(b) in Record 10 contains data from a police records database the police used as part of their investigation into the complaints described in the records. The ministry submits the information was compiled during the course of investigations into potential charges. As such, the ministry submits the information subject to its section 49(b) claim in Record 10 is subject to the presumption in section 21(3)(b).

[30]  In addition, the ministry submits the factor in section 21(2)(f) applies to the personal information at issue in Record 10. Section 21(2)(f) states,

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

the personal information is highly sensitive.

The ministry submits the personal information at issue is highly sensitive and there is a reasonable expectation of significant personal distress if the personal information is ordered to be disclosed.

[31]  The appellant did not address the application of section 49(b) to the records at issue. However, in his representations, the appellant claims he appeals the ministry’s decision on his own and another individual’s behalf. The records at issue contain this other individual’s personal information. I notified this individual of the appeal during the inquiry but they did not respond to the notice. In the absence of any response from this individual and any factors in section 21(2) applying in favour of the disclosure of this personal information, I find it is exempt under section 49(b), pending my review of the ministry’s exercise of discretion, below.

[32]  With regard to section 21(3)(b), I reviewed the personal information at issue in Record 10 and am satisfied the presumption applies to it. I find the personal information contained in Record 10 was collected as part of an investigation into a possible violation of law. As such, the presumption in section 21(3)(b) applies to the personal information at issue in Record 10.

[33]  With regard to the personal information at issue in Records 7, 11, 15, 20, 30, 34, 40, 41 and 42, I am satisfied it is exempt under section 49 (b) of the Act . None of the parties raised the application of the factors favouring disclosure in section 21(2) to the records and, upon review, I find none apply. In addition, given the nature of the personal information at issue in these records and the fact it was collected as part of a firearms application, I find that disclosure of the personal information of these identifiable individuals would constitute an unjustified invasion of their personal privacy.

[34]  I reviewed the records at issue and find the absurd result principle has no application. Therefore, I find that section 49(b) applies to exempt the personal information at issue, pending my review of the ministry’s exercise of discretion.

Issue D:  Does the discretionary exemption at section 49(a), read with sections 14(1)(c), apply to the information at issue?

[35]  The ministry claimed the application of various sections of the law enforcement exemption in section 14(1) to withhold portions of Records 8, 9, 10, 12 and 13. I have already found the information at issue in Record 10 is exempt under section 49(b). As such, I will not consider whether it is also exempt under section 49(a), read with section 14(1)(d), (i) or (l), as claimed by the ministry.

[36]  Section 49 (a) of the Act  gives the ministry the discretion to refuse to disclose the appellant’s personal information to him if the record contains information that would be exempt under sections 12 , 13 , 14 , 14.1 , 14.2 , 15 , 15.1 , 16 , 17 , 18 , 19 , 20  or 22  of the Act . In this appeal, the ministry submits that section 49(a), read with section 14(1)(c) applies to the Client Eligibility Checklist on pages 8, 9, 12 and 13. Section 14(1) (c) of the Act  reads,

A head may refuse to disclose a record where the disclosure could reasonably be expected to reveal investigative techniques and procedures currently in use or likely to be used in law enforcement.

The term law enforcement is defined in section 2(1) of the Act and applies to a police investigation into a possible violation of the Criminal Code . [7]

[37]  It is not enough for an institution to take the position that the harms under section 14(1) are self-evident from the record or that the exemption applies simply because of the existence of a continuing law enforcement matter. [8] The institution must provide evidence about the potential for harm. It must demonstrate a risk of harm 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 information at issue and seriousness of the consequences. [9]

[38]  In order to meet the investigative technique or procedure requirement under section 14(1)(c), the ministry must show that disclosure of the technique or procedure to the public could reasonably be expected to hinder or compromise its effective utilization. The exemption normally will not apply where the technique or procedure is generally known to the public. [10] The techniques or procedures must be investigative. The exemption will not apply to enforcement techniques or procedures. [11]

[39]  The ministry applied section 49(a), read with section 14(1)(c), to withhold the Client Eligibility Checklist on Records 8, 9, 12 and 13. The ministry states it applied this exception because it is concerned that the disclosure of this checklist will undermine the effectiveness of investigative measures in place under the Firearms Act to assess applications and to ensure that only qualified applicants are granted licenses to acquire and possess firearms.

[40]  The ministry states the Client Eligibility Checklist was developed by the Canadian Firearms Program (CFP) to assist the CFO and its counterparts in other jurisdictions, in determining whether applicants are eligible to obtain a firearm license. The ministry submits that the disclosure of the information at issue would enable applicants of firearms to discover the types of checks conducted on a licence application or renewal, which could thwart this investigative technique. The ministry refers to Order PO-2582, in which the adjudicator upheld the application of section 49(a), read with section 14(1)(c), to the same information.

[41]  The ministry submits the contents of the Client Eligibility Check are not well known to the public and it is not in the public interest for them to be. The ministry submits the disclosure of this information would hinder the ability of the CFO to carry out its responsibilities in relation to the Firearms Act.

[42]  The appellant did not make submissions on the application of the law enforcement exemption.

[43]  I reviewed the Client Eligibility Checklist in Records 8, 9, 12 and 13 and find it is exempt under section 49(a), read with section 14(1) (c), of the Act . I find support for this finding in Order PO-2582. In that decision, the adjudicator considered the same exemption claim to the same checklist and found as follows:

I find that disclosure of the undisclosed portions of pages 6, 7, 8, 10 and 11 of Record 1 and of Record 5, which contain the techniques for checking eligibility to obtain or maintain a firearm license, could reasonably be expected to reveal law enforcement investigative techniques currently in use. In my view, disclosure of these techniques could reasonably be expected to hinder or compromise their effective utilization as it would enable individuals to modify his or her behaviour and activities in order [to] unlawfully obtain or retain firearms. As such, I conclude that disclosure of this information would hinder the ability of the CFO to carry out its responsibilities in relation to the Firearms Act. [12]

This analysis was followed in Order PO-3374 and I follow it for the purposes of this appeal. Based on my review of Records 8, 9, 12 and 13, I am satisfied they contain a technique for ensuring an applicant is eligible to obtain or maintain a firearm license. In addition, I am satisfied the disclosure of this information could reasonably be expected to hinder or compromise the effective utilization of these techniques. Therefore, I find the information at issue in Records 8, 9, 12 and 13 are exempt under section 49(a), read with section 14(1)(c), subject to my review of the ministry’s exercise of discretion, below.

Issue E:  Did the ministry exercise its discretion under sections 49(a), read with sections 14(1)(c), and 49(b)? If so, should the IPC uphold the exercise of discretion?

[44]  The sections 49(a) and (b) exemptions are discretionary and permit an institution to disclose the information subject to these exemptions despite the fact it could withhold it. An institution must exercise its discretion. On appeal, the IPC may determine whether the institution failed to do so. The IPC may find 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 or it fails to take into account relevant considerations. In either case, this office may send the matter back to the institution for an exercise of discretion based on proper considerations. [13] However, the IPC may not substitute its own discretion for that of the institution. [14]

[45]  The ministry submits it properly exercised its discretion in applying sections 49(a), read with section 14(1)(c), and 49(b). The ministry submits it considered the following:

• The privacy of the affected third party individuals in contact with the CFO should protected;
• The ministry wishes to protect the integrity of processes used by CFO to regulate firearms and to protect public safety; and
• The ministry disclosed the majority of the responsive records and as much as possible without disclosing records it submits are otherwise exempt.

[46]  The appellant did not make submissions on the ministry’s exercise of discretion. However, in his representations, the appellant makes a number of allegations regarding the ministry and the CFO’s bad faith and/or poor conduct in relation to himself and his firearms applications.

[47]  Upon review of the information at issue and the parties’ representations, I find the ministry properly exercised its discretion under sections 49(a), read with 14(1)(c), and 49(b). I am satisfied the ministry did not exercise its discretion in bad faith or for an improper purpose as there is no evidence before me this is the case. While the appellant alleges bad faith on the part of the CFO and the ministry, I find he did not provide sufficient evidence to support these allegations. I reviewed the records and find the ministry disclosed the majority of the records to the appellant. I also find the ministry properly considered the principles that the appellant should be able to access his own personal information and that the affected parties’ personal privacy should be protected. In addition, I find the ministry properly considered the purpose of section 14(1)(c) in withholding portions of Records 8, 9, 12 and 13. Accordingly, I find the ministry took relevant factors into account and did not take into account irrelevant factors. I uphold the ministry’s exercise of discretion to apply sections 49(a), read with section 14(1) (c), and 49 (b) of the Act  to the information at issue.

Issue F:  Did the ministry conduct a reasonable search for records?

[48]  Where a requester claims that additional records exist beyond those identified by the institution, the issue to be decided is whether the institution conducted a reasonable search for records as required by section 24  of the Act . [15] If I am satisfied the search carried out was reasonable in the circumstances, I will uphold the ministry’s search. If I am not satisfied, I may order further searches.

[49]  The Act  does not require an institution to prove with absolute certainty further records do not exist. However, the institution must provide sufficient evidence to show it made a reasonable effort to identify and locate responsive records. [16] To be responsive, a record must be reasonably related to the request. [17]

[50]  A reasonable search is one in which an experienced employee, knowledgeable in the subject matter of the request, expends a reasonable effort to locate records which are reasonably related to the request. [18]

[51]  A further search will be ordered if the institution does not provide sufficient evidence to demonstrate it made a reasonable effort to identify and locate all the responsive records within its custody or control. [19]

[52]  Although a requester will rarely be in a position to indicate precisely which records the institution has not identified, the requester still must provide a reasonable basis for concluding such records exist. [20]

[53]  The ministry submits it conducted a reasonable search for records responsive to the appellant’s request. The ministry provided an affidavit detailing its search for records. The affidavit was sworn by the Manager-Licensing and Transfer with the CFO (the manager). The manager states her responsibilities include conducting searches in response to access requests. The manager states the ministry notified her of the appellant’s request shortly after it received it. The manager states the CFO maintains hard copy files pertaining to each business that is a client of the CFO. Each file contains specific records of all Firearms License applications, licences, authorizations, correspondence and memos pertaining to the particular requester or applicant. The manager states she assisted a staff member with the search and review of the appellant’s file for any records relating to his request for the period he identified. The manager states she located 46 pages of responsive records and forwarded them to the ministry’s FOI and Privacy Office.

[54]  After the appellant filed his appeal and raised reasonable search as an issue, the manager states she conducted another search for responsive records. The manager confirms she did not locate any additional records. Finally, when preparing the affidavit for the inquiry, the manager states she conducted additional searches of the Canadian Firearms Information System (CFIS) as well as the CFO’s public drives for any responsive records that may be on these systems. The manager confirms she did not locate any additional responsive records.

[55]  The manager submits she conducted diligent and thorough searches for responsive records. She states she is not aware of the existence of any other responsive records.

[56]  The appellant did not make submissions on the ministry’s search for responsive records.

[57]  Based on my review of the ministry’s submissions, I am satisfied it conducted a reasonable search for responsive records. As set out above, the Act  does not require the ministry to prove with absolute certainty that additional records do not exist, but to provide sufficient evidence to establish they made a reasonable effort to locate responsive records. In my view, the ministry provided me with a sufficient explanation of its search for responsive records. The ministry provided details regarding the locations it searched for records as well as the types of records the CFO maintains. I find the manager is an experienced employee, knowledgeable in the subject matter of the appellant’s request. Further, I find the manager expended a reasonable effort to locate records responsive to the appellant’s request.

[58]  In addition, I find the appellant did not provide sufficient evidence to demonstrate there is a reasonable basis for his belief that additional responsive records should exist. The appellant did not provide any evidence regarding the existence of additional responsive records.

[59]  In conclusion, I am satisfied the ministry conducted a reasonable search for records responsive to the appellant’s request.

ORDER:

I uphold the ministry’s decision and dismiss the appeal.

Original Signed by:		August 30, 2018
Justine Wai
Adjudicator