INTERIM ORDER MO-1275-I

 

Appeal MA‑990234‑1

 

Niagara Regional Police Services Board

NATURE OF THE APPEAL:

 

The Niagara Regional Police Services Board (the Police) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act) from a lawyer representing two clients.  The request was for “the information on file with [the Police] as referred to by [a named police officer] in his letter dated December 14, 1998.”  This letter refers to records obtained from Bell Canada as a result of search warrants issued in 1995 and 1996 to trace telephone calls received by the appellant’s clients.

 

The Police granted access in full to the search warrants, and denied access to the two call trace records (dated 1995 and 1996) pursuant to section 14(1) of the Act.  The Police relied on the “presumed unjustified invasion of personal privacy” in section 14(3)(b) of the Act in support of the section 14(1) exemption claim.

 

The requester (now the appellant) appealed the decision of the Police.

 

I sent a Notice of Inquiry initially to the Police.  Because the records contain the personal information of the appellant’s clients, I included section 38(b) of the Act within the scope of the inquiry.  After reviewing the representations provided by the Police, I sent the Notice of Inquiry to the appellant, together with the Police representations, in their entirety.  The appellant submitted representations.

 

PRELIMINARY MATTERS:

 

Type of request

 

Part I of the Act deals with “Access to Records”.  Section 4, which is included in Part I, provides individuals with a general right of access to records within the custody or control of institutions, subject to a number of exemptions outlined in sections 6 through 15.  One of these exemptions, section 14, requires an institution to refuse to disclose personal information of an individual other than the requester unless one of the exceptions to this mandatory exemption has been established.  One of these exceptions is if disclosure would not represent an unjustified invasion of the privacy of the other individual.  In other words, unless it is established that disclosure of the other individual’s personal information would not be an unjustified invasion of privacy, the institution must deny access to that information.

 

Part II of the Act deals with the “Protection of Personal Privacy”.  Section 36(1), which is included in Part II, provides individuals with a general right of access to their own personal information, subject to a number of exemptions outlined in section 38.  One of these exemptions, section 38(b), permits the institution to refuse to disclose the personal information of an individual other than the requester even if disclosure would represent an unjustified invasion of the privacy of that other individual.  In contrast to Part I, if a request is made under Part II for access to one’s own personal information, and a responsive record includes the personal information of both the requester and another individual, the institution has discretion to disclose this information, even if to do so would constitute an unjustified invasion of the other individual’s personal privacy.

 

In the present case, the Police received a request from a lawyer representing two individuals for records relating to them.  In responding to the request, the Police denied access to the records, which appeared to contain the personal information of the individuals, pursuant to section 14(1) of the Act.  In other words, the Police treated this as a Part I request.

 

In the Notice of Inquiry, I asked the parties to address the following three questions:

 

1.         Does the request fall under Part I or Part II of the Act?

 

2.         If a request is submitted by a lawyer on behalf of a client, does this have any bearing on whether the request falls under Part I or Part II of the Act?

 

3.         If a request is submitted by an agent on behalf of a principal, does this have any bearing on whether the request falls under Part I or Part II of the Act?

 

Only the Police submitted representations in response to these questions.  The representations read as follows:

 

The records at issue are two Bell Canada trace reports.  The traces were placed on the telephone lines of the appellants by Bell Canada at the request of the [Police] for the purpose of identifying callers to the appellants’ telephone lines.  The records were obtained by the police under a Criminal Code  Warrant to Search.  Naturally, it is presumed, the telephone numbers of the appellants appear on these reports and that, the telephone numbers of the appellants are their personal information.  If an argument were to be made that this report contains shared personal information I believe it could be made on this basis and this basis alone.  It is doubtful, however, that the appellants are interested in retrieving their own telephone numbers from these reports and I had, therefore, not considered them in making my decision.

 

The remainder of the reports contain information pertaining to the dates and times of calls received on the appellants’ phone lines as well as the telephone numbers of the callers to the appellants’ phone lines.  The Service and Equipment Profile portions of these reports identify the names and addresses of the subscribers to the telephone numbers obtained from the trace reports.  The question, then, is whether this information is information which is solely third party information or the shared information of the third parties and the appellants.

 

It seems to me that it is generally the case that where information is shared information it is more or less unseverable and thus the need for the invasion of another individual’s personal privacy.  I do not think, however, that it can be argued that the personal information of the third parties in these records can be considered the personal information of the appellants ..  do not believe that the fact of having called a telephone number necessarily entitles the person being called to the personal information of the caller.  (That Bell Canada assumes this to be the case is evidenced by the fact that this information is not publicly available.  A caller has, moreover, the option of blocking his or her personal information from being displayed on the line he or she is calling).

 

My belief that this is the case and my decision that this request falls under Part I of the Act was not influenced by the request having been made by the appellants’ representative.  I don’t believe that it has any bearing on whether the request falls under Part I or Part II of the Act.

 

Although I understand the rationale adopted by the Police in responding to the request, in my view, it is incorrect.

 

The approach taken by the Commissioner's office with respect to the analysis of personal information was set out in considerable detail in Order M-352.  In that order, former Adjudicator John Higgins reviewed the statutory context under which an analysis of personal information in a record should be made.  Following his discussion of the purpose of both the sections 14 and 38 exemptions, the former Adjudicator stated:

 

In order to give effect to the legislature's intention to distinguish between requests for an individual's own personal information and other types of requests, the Commissioner's office has developed an approach for determining whether Part I or Part II of the Act applies.  In that approach, the unit of analysis is the record, rather than individual paragraphs, sentences or words contained in a record.

 

He also discussed at some length the legislature's purpose for creating a distinction in the Act between an individual's own personal information and that of another individual, and pointed out that the rationale is to emphasize the special nature of requests for one's own personal information.  In recognizing that individuals have a greater right of access to their own personal information, the Act gives institutions the power to grant access in situations where responsive records may also contain the personal information of other individuals.  Adjudicator Higgins went on to conclude:

 

In my view, the record-by-record analysis best reflects the special character of requests for records containing one's own personal information, and it provides a practical, uniform procedure which all institutions can apply in a consistent manner.

 

[See also Orders M-449, M-514 and P-1031 and Reconsideration Order R-980036]

 

Applying this reasoning to the circumstances of the present appeal, I find that the unit of analysis is the call trace records, both of which contain the information of the appellant’s clients and other identifiable individuals and, therefore, the request falls under Part II of the Act.

 

 

Scope of the Request

 

After submitting his representations, the appellant sent me a letter which states:

I would like to clarify and emphasize that my clients seek not only the release of the call intercepted in the traces under the warrants in 1995 and 1996, they also seek the release of the 180 days of traces from August 1997 to January 1998 which are held by Bell Canada.  No warrant appears to have been executed for these.

 

The appellant’s request letter refers to call trace records obtained by search warrants issued in 1995 and 1996.  It does not mention any 1997 and 1998 records.  In his letter of appeal, the appellant identifies these more recent records, however, during mediation the appellant was advised that any records covering 1997 and 1998 fell outside the scope of the request.  The Report of Mediator issued at the completion of mediation also makes it clear that the appeal involved only the 1995 and 1996 call trace records.

 

The appellant can certainly submit a new request to the Police for any responsive records covering 1997 and 1998.  The appellant should be aware that, unlike the 1995 and 1996 call trace records which were the subject of search warrants and clearly in the custody and/or under the control of the Police, based on the statement made by the appellant, it would appear that any responsive 1997 and 1998 records are not in the custody of the Police, thereby raising possible different issues than those before me in the present appeal.

 

Accordingly, I find that any 1997 or 1998 call trace records are outside the scope of the appellant’s request and will not be addressed in this order.

 

DISCUSSION:

 

PERSONAL INFORMATION

 

Section 2(1) of the Act defines “personal information”, in part, as recorded information about an identifiable individual.

 

As outlined earlier in the representations provided by the Police, the records contain the telephone number and names of the appellant’s clients as well as the telephone numbers of persons calling the clients’ phone lines.  The Service and Equipment Profile portions of these reports identify the names and addresses of the subscribers to the telephone numbers obtained from the call trace reports. 

 

I find that the records contain the personal information of the appellant’s clients, as well as the personal information of other identifiable individuals, specifically the subscribers whose phones were used to call the appellant’s clients.

 

INVASION OF PRIVACY

 

Section 36(1) of the Act gives individuals a general right of access to their own personal information held by a government body.  Section 38 provides a number of exceptions to this general right of access.

 

As stated earlier, under section 38(b) of the Act, where a record contains the personal information of

both a requester and another individual, and the institution determines that the disclosure of the information would constitute an unjustified invasion of the other individual's personal privacy, the institution has the discretion to deny the requester access to that information.   Sections 14(2) and (3) of the Act provide guidance in determining whether disclosure would result in an unjustified invasion of the personal privacy of the individual to whom the information relates.  Section 14(2) provides some criteria for the head to consider in making this determination.  Section 14(3) lists the types of information whose disclosure is presumed to constitute an unjustified invasion of personal privacy.  The Ontario Court of Justice (General Division) determined in the case of John Doe et al. v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767, that the only way in which a section 14(3) presumption can be overcome is if the personal information at issue falls under section 14(4) or where a finding is made under section 16 of the Act that there is a compelling public interest in disclosure of the information which clearly outweighs the purpose of the section 14 exemption.

 

The Police rely on the presumption of an unjustified invasion of privacy at section14(3)(b).  This section reads:

 

(3)        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;

 

The appellant’s representations attach a detailed history provided by his clients which outline difficulties that they have experienced over the course of several years with harassing phone calls and the impact it has had on their lives.  The clients also express serious concerns with what they feel is the lack of adequate action by the Police in response to their complaints.  In so stating, the appellant has raised the factor listed under section 14(2)(d) of the Act, that disclosure of the records is relevant to a fair determination of his clients’ rights.

 

The Police submit:

 

A telephone trace was placed on the appellants’ telephone lines as the result of a complaint by the appellants of harassing telephone calls ...  The appellants informed [the Police] that they had received numerous nuisance telephone calls and furthermore they believed they knew the identity of the suspect.  ...

 

The representations provided by the Police quote at length from the reports prepared by the investigating officers, which outline the results of the investigation and conclusions reached.  As stated earlier, these representations were provided to the appellant during this inquiry.

 

The Police concluded by stating:

As stated earlier, the information contained in these reports was obtained by [the Police] under a Criminal Code  Warrant to Search for the purpose of investigating complaints of harassing phone calls.  The police determined that no evidence of harassment was evident from the trace records and closed their investigation as “unfounded”.

 

For personal information to be “compiled” and identifiable as part of an investigation into a possible violation of law under section 14(3)(b), it is not necessary for this information to have been originally created or prepared for that specific investigation.  Rather, the section 14(3)(b) presumption will apply as long as the personal information was, at some point in time, assembled or gathered together as part of this investigation (see Order P-666).

 

Also, the fact that no criminal proceedings were commenced by the Police does not negate the applicability of section 14(3)(b).  In Order MO-1192, Adjudicator Laurel Cropley stated, in the context of a request for police records concerning an alleged assault:

 

The appellant submits that since the Police made a judgment call not to lay charges against the suspect, they have not established the application of the presumption in section 14(3)(b). 

 

I am satisfied that the Police investigated an alleged assault on the appellant at the named high school and that the investigation was conducted with a view to determining whether criminal charges were warranted.  Accordingly, I find that the personal information in the records was compiled and is identifiable as part of an investigation into a possible violation of law and its disclosure would constitute a presumed unjustified invasion of personal privacy.  The presumption may still apply, even if, as in the present case, no charges were laid (Orders P-223, P‑237 and P‑1225).  As I indicated above, once a determination has been made that the presumption in section 14(3)(b) applies, it cannot be rebutted by factors in section 14(2).  Therefore, even if I were to find that section 14(2)(d) applies in the circumstances, it would not be sufficient to rebut the presumption in section 14(3)(b).  I have considered section 14(4) and find that it does not apply in the circumstances of this appeal.

 

In my view, the principles articulated by Adjudicator Cropley in Order MO-1192, and in other previous orders such as those referred to by the Police, are applicable in the present appeal.  The information contained in the records was compiled and is identifiable as part of an investigation into a possible violation of law, in this case the Criminal Code .  Therefore, the section 14(3)(b) presumption of an unjustified invasion of personal privacy applies which, based on John Doe, cannot be rebutted by the section 14(2)(d) factor raised by the appellant or any other factor or factors under section 14(2) of the Act.  For this reason is it not necessary for me to consider whether section 14(2)(d) is a relevant factor in the circumstances of this appeal.

 

None of the personal information contained in the record falls under section 14(4), and the appellant has not raised the possible application of section 16 of the Act.

As stated earlier, this appeal involves a request that should have been processed by the Police under Part II of the Act, which provides the Police with discretion to balance two competing interests  - in this case, the appellant’s clients’ right of access to their personal information and other identifiable individuals’ rights to privacy.  If the Police conclude that the balance weighs in favour of disclosure, the records may be released to the appellant, even if the Police have concluded that this disclosure would represent an unjustified invasion of the other individuals’ privacy.

 

The Police did not address the exercise of discretion in their representations, on the assumption that the appellant’s clients did not want access to their own phone number, and that the personal information of the other identifiable individuals was properly exempt under section 14(1).  For the reasons already discussed in this order, the entire records contain the personal information of the appellant’s clients, and I have decided to return this matter to the Police for the purpose of properly exercising discretion in deciding whether or not to claim exemption for the records under section 38(b) of the Act.

 

INTERIM ORDER:

 

1.         I find that records satisfy the requirements of section 14(3)(b) of the Act.

 

2.         I order the Police to consider the exercise of discretion under section 38(b) with respect to the records and to provide me with representations as to the factors considered in doing so by March 7, 2000.  The representations concerning the exercise of discretion should be forwarded to my attention c/o Information and Privacy Commissioner/Ontario, 80 Bloor Street West, Suite 1700, Toronto, Ontario, M5S 2V1.

 

3.         I remain seized of this appeal in order to deal with the exercise of discretion under section 38(b) by the Police with respect to the records.

 

 

 

 

 

 

Original signed by:                                                                            February 16, 2000                    

Tom Mitchinson

Assistant Commissioner