INTERIM ORDER MO-1277-I

 

Appeal MA-990226-1

 

Toronto Police Services Board

 

NATURE OF THE APPEAL:

 

The Toronto 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 an individual who was injured in an incident involving the local transit authority.  The request was for a copy of the notebook entries of the two investigating police officers.

 

The Police identified five pages of notebook entries containing responsive information. 

 

Pursuant to section 21 of the Act, the Police sent a letter notifying a witness identified in the records (the affected person) of the request.  The affected person did not respond.  The Police decided to grant partial access to the records, claiming section 14(1) of the Act as the basis of denying access to information relating to the affected person.  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.

 

I sent a Notice of Inquiry to the Police and the affected person.  Because the records contain the personal information of the appellant’s client, I included section 38(b) of the Act within the scope of the inquiry.  The affected person did not submit representations.  After reviewing the representations provided by the Police, I sent the Notice of Inquiry to the appellant, together with all non-confidential portions of the Police’s representations.  The appellant submitted representations, which included a statement that he continues to seek access to the affected person’s statement regarding the incident, but not to any personal identifiers.

 

The only record which remains at issue consists of the affected person’s statement, as recorded on one page of notebook entries made by one of the investigating police officers.

 

PRELIMINARY MATTER:

 

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 an individual for records relating to that individual.  In responding to the request, the Police denied access to the records, which appeared to contain the personal information of the individual, 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:

 

Question 1

 

The request falls under Part I of the Act.  It is a request for general information from [the individual’s lawyer].  Pursuant to a request from the institution, a waiver signed by [the individual] was provided by [the individual’s lawyer] allowing him access to [the individual]’s information.

 

If the requester is not a victim/witness/accused or other involved party in an incident, the Toronto Police Service Freedom of Information Unit routinely requires a valid authorization from the party whom the requester purports to represent.  In the absence of authorization from an involved party, this institution would either refuse to confirm or deny the existence of the information (sec. 14(5)) or, where circumstances would render such a decision absurd (i.e. the requester has provided sufficient detail to confirm their knowledge of the occurrence), access would be denied under the applicable privacy provisions.  In the instance of someone claiming entitlement to another individual’s information, without an authorization from that individual, third party procedures would not be instituted to seek that consent, pursuant to sec. 14(1)(a):

 

[the text of section 14(1)(a)]

 

 

Question 2

 

The difference between a personal information and general information request was perhaps best defined in 1995 by [Management Board Secretariat (MBS)].  At that time, in response to Schedule K of Bill 26 (the Omnibus Bill), MBS prepared a memorandum to FOI Coordinators at both the Provincial and Municipal levels.  Amongst other things, this memorandum addressed the issue of appeal fees and the need for the institution to communicate these facts to the requester.  The memorandum supplied wording which has been adopted by many institutions, including the Police, as the closing phrase for its decision letter:

 

“You may request a review of this decision by the Information and Privacy Commissioner, 80 Bloor St. West, Suite 1700, Toronto, Ontario, M5S 2V1.  You have 30 days to make this appeal.

 

If your request was for your personal information, the appeal fee is $10.00.  The appeal fee for all other requests for information is $25.00.  Please include the fee in your letter of appeal  - appeal fees should be in the form of either a cheque or a money order, made payable to the Minister of Finance.”

 

It is interesting to note that similar wording is included on the IPC’s website under ‘Frequently Asked Questions’.  In practice, therefore, an agent (i.e. lawyer) when reading, “If your request was for your personal information, the appeal fee is $10.00 would have to answer ‘no’ - therefore deeming it to be a request for general information [emphasis added by the Police].

 

Question 3

 

If a request is submitted by an agent on behalf of a principal, it has a bearing insofar as valid authorization from the principal must be provided by the requester (agent).  It must be borne in mind that, save for extremely rare circumstances, any agent is acting on behalf of a principal, they are not themselves the subject of the information being requested and are subject to whatsoever limitations are dictated in the authorization [emphasis added by the Police].

 

I do not accept the position put forward by the Police.

 

In making the request for information, the appellant, as a lawyer, is not standing in the position of a stranger at arm’s length from his client; rather, he is acting as the agent of his client in pursuing access to the client’s personal information.  He is also representing the client’s interest in the context of a solicitor-client relationship.  The appellant is bound by the Rules of Professional Conduct of the Law Society of Upper Canada to act honestly and in his client’s best interests at all times, which would include the duty not to misrepresent his authority to act on the client’s behalf in this matter. 

The appellant has represented to the Police that he has his client’s authority in this respect and the signed waiver provides ample evidence of this authority.  In these circumstances, it is clear that the appellant has both express and ostensible authority to act on his client’s behalf and that he stands in the client’s shoes for the purpose of making the request and taking ancillary steps in this appeal.  Lawyers and their clients operate in this fashion before courts and tribunals on a daily basis and this facilitates the better administration of justice.  For these reasons, I find that the appellant, as agent, has made the request as if the client had made it himself.

 

If a request is received from a lawyer for information on behalf of a client which would otherwise be considered a Part II request if made by the client directly, and the lawyer has satisfied the institution that he/she has been given the requisite authority by the client, then the request should be processed as a Part II request for personal information not as a Part I request for general records.  The discretionary exemptions provided by section 38 of the Act would be available to institutions in these circumstances, if appropriate, and the $10 appeal fee provided by section 5.3 (1)(b) of Regulation 823 would apply.

 

DISCUSSION:

 

PERSONAL INFORMATION

 

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

 

The record remaining at issue in this appeal consists exclusively of the statement given by the affected person to the Police, as recorded in the one police officer’s notebook.  The statement was taken in the context of the investigation of the incident involving the appellant’s client.  The affected person was a witness to the incident. 

 

I find that the record contains the personal information of both the appellant and the affected person.

 

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, and section 14(4) refers to certain types of information whose disclosure does not constitute an unjustified invasion of personal privacy.  The Divisional Court has stated that once a presumption against disclosure under section 14(3) has been established, it cannot be rebutted by either one or a combination of the factors set out in section 14(2) [John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767].

 

The Police rely on the presumption of an unjustified invasion of privacy contained in section 14(3)(b), which 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 submits:

 

The [named transit authority] is taking the position that the accident was not caused as a direct use of the automobile and, therefore, has denied accident benefits to my client.

 

... all I am requesting is a copy of the statement provided by the [affected person] to the Police.

 

In so stating, the appellant has raised the factor listed under section 14(2)(d) of the Act, that disclosure of the record is relevant to a fair determination of his client’s rights.

 

The Police state that the personal information was collected in the course of investigating an incident which occurred on or near the transit authority’s property.  The Police submit that the fact that no criminal proceedings were commenced by the Police does not negate the applicability of section 14(3)(b).  This section only requires that there be an investigation into a possible violation of law.  The Police refer to Orders M-198 and P-237 in support of their position. 

 

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 Highway Traffic Act.  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 it is 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 client’s right of access to his personal information, and the affected person’s right 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 affected person’s privacy.

 

In Order 58, former Commissioner Sidney B. Linden found that a head’s exercise of discretion must be made in full appreciation of the facts of the case, and upon proper application of the applicable principles of law.  He stated that, while the Commissioner may not have the authority to substitute his discretion for that of the head, he could and, in the appropriate circumstances, he would order the head to reconsider the exercise of his or her discretion if he feels it has not been done properly.  Former Commissioner Linden concluded that it is the responsibility of the Commissioner's office, as the reviewing agency, to ensure that the concepts of fairness and natural justice are followed.

 

In Order P-344, I considered the question of the proper exercise of discretion as follows:

 

...  In order to preserve the discretionary aspect of a decision ... the head must take into consideration factors personal to the requester, and must ensure that the decision conforms to the policies, objects and provisions of the Act.

 

In considering whether or not to apply [certain discretionary exemptions], a head must be governed by the principles that information should be available to the public; that individuals should have access to their own personal information; and that exemptions to access should be limited and specific.  Further, the head must consider the individual circumstances of the request.

 

My reasoning in Order P-344 is equally applicable to the exercise of discretion under section 38(b) of the Act in the present appeal.

 

The Police include the following statements regarding the exercise of discretion:

 

The mandate and, indeed, spirit of [the Act] is the balance of privacy protection with the public’s right to know.  This institution scrupulously weighs these factors in each and every access request file.  As the nature of the majority of our records is that of law enforcement, we must be particularly mindful of the privacy rights of anyone who is named or referred to in a record.

 

Given the nature of our records, it is accurate to assume that in any access file, in the absence of explicit consent from a third party, this institution will always be most circumspect in considering release of information.

 

While I agree with the Police that caution must be exercised whenever called upon to balancing the rights of access and privacy, and that consent of an affected person makes this balancing exercise easier, it is also my view that the proper exercise of discretion includes the consideration of the particular circumstances of each case, even when consent is either specifically withheld or when the affected person has not been located, as in the present appeal.  Based on the representations provided by the Police, I am not persuaded that the Police have considered all of the relevant circumstances of this particular case, including the fact that the affected person did not specifically object to the disclosure of his personal information.  For this reason, 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 undisclosed information pursuant to section 38(b) of the Act.

 

INTERIM ORDER:

 

1.         I find that record satisfies 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 record and to provide me with representations as to the factors considered in doing so by March 9, 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 18, 2000                     

Tom Mitchinson

Assistant Commissioner