Access to Information Orders

ORDER MO-1288

 

Appeal MA‑990090‑1

 

Toronto Police Services Board

NATURE OF THE APPEAL:

 

The Toronto Police Services Board (the Police) received two multiple-part requests under the Municipal Freedom of Information and Protection of Privacy Act (the Act).

 

In Order MO-1186, Adjudicator Donald Hale found that records requested by the appellant pertaining to complaints he made against police officers in 1996 and 1997 were subject to the Act.  In Provision 3 of Order MO-1186, Adjudicator Hale ordered the Toronto Police Services Board (the Police) to make an access decision respecting these records.

 

The Police granted partial access to the records.  Access was denied to parts of the records under sections 9(1)(d), 14(1), 38(a) and 38(b) of the Act.  The appellant appealed the decision of the Police.

 

Mediation was not successful, and I sent a Notice of Inquiry to the Police, the appellant, nine police officers and two other individuals whose interests could be affected by the outcome of this appeal.  Representations were received from the Police and three of the police officers.

 

Because the Police took the position in their representations that municipal police services were agencies of the Ministry of the Solicitor General and that the Toronto Ambulance Service was an agency of the Ministry of Health and Long-Term Care, I also notified the Ministry of the Solicitor General, the Ministry of Health and Long-Term Care and the City of Toronto with respect to the application of section 9(1)(d).  I received representations from the Ministry of Health and Long-Term Care (MOHLTC) only.

 

RECORDS:

 

The records at issue consist of 217 pages of memo books of officers, complaint forms, complaint responses, correspondence, exhibits, statements, letters and other correspondence.  The appellant was granted access to 90 pages, partial access to another 69 pages, and he was denied access to 58 pages.

 

The appellant has indicated that he is not pursuing access to the information which the Police indicate is not responsive to his request.  Accordingly, Records 47-51, 53-57, 136-137, 141-142, 145-157, 159-167, 169-170, 196, and parts of Records 52, 68, 87, 158, 188 and 189 are no longer at issue in this appeal.

 

PRELIMINARY MATTERS:

 

Absurd Result

 

Records 16, 17, 20, 21, 22, 23, 27, 59, 61, 62, 205, 207, 208, 209, 219 and 221 consist of interim reports headed “Public Complaint Form 4 ‑Police Services Act, 1990” and Records 36, 75, 89 are titled “Form 17 - Notice of Intention to Conduct a Review”.  The distribution notation at the bottom of the form indicates that the “Complainant” (the appellant) was given a copy.  It would appear that these reports are the type of documents that must be sent to a complainant by the Police under section 87 of the Police Services Act.

 

Records 90, 91 and 109 are letters addressed to the appellant.  Records 198 and 228 are the appellant’s Recognizance of Bail.

In Order M-444, former Inquiry Officer John Higgins found that the refusal of access to information which the appellant originally provided to the Police would be contrary to one of the purposes of the Act, which is to allow individuals to have access to records containing their own personal  information unless there is a compelling reason for non-disclosure and would, applying the rules of statutory interpretation, lead to an “absurd result.”

 

In Order PO-1708, Assistant Commissioner Tom Mitchinson applied the same principles to find that any records provided to the appellant in that case approximately six years earlier during the course of an investigation under the Police Services Act into that appellant’s complaint would also lead to an absurd result.

 

Records 16, 17, 20-23, 27, 36, 59, 61, 62, 75, 89-91, 109, 198,  205, 207-209, 219, 221 and 228 were provided to the appellant three years ago during the investigation of his complaint, for valid public policy reasons.  Applying section 9(1)(d), 14(1) or 38(b) to them when the appellant requests access to them in this scheme would, in my view, be contrary to one of the purposes of the Act, which is to allow individuals to have access to records containing their own personal information, and therefore lead to an absurd result, despite the passage of time.  Accordingly, I find that these sections cannot apply to these records and their application will not be considered further in this order.  These records should be disclosed to the appellant.

 

DISCUSSION:

 

Invasion of Privacy

 

All of the records remaining at issue contain the personal information of the appellant.  Accordingly, the question of whether disclosure would constitute an unjustified invasion of privacy must be determined in the context of section 36(1) of the Act.

 

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.

 

Under section 38(b) of the Act, where a record contains the personal information of both the appellant and other individuals and the institution determines that the disclosure of the information would constitute an unjustified invasion of another 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 of personal information 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.  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 has been established, it cannot be rebutted by either one or a combination of the factors set out in 21(2) [John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767].

The information which has been withheld from the appellant, with a few exceptions, consists of the personal information of other identifiable individuals. 

 

Under section 2(1) of the Act, "personal information" is defined, in part, to mean recorded information about an identifiable individual.  The information which has been withheld consists of the names, badge numbers, division assignment, statements of and other information about the constables the appellant complained about, the statements of and other information about civilian and police witnesses and the description and analysis of some of the physical evidence obtained during the investigation of the appellant’s complaint.  All of this information is, in my view, recorded information about identifiable individuals, specifically the constables and witnesses.  Although names, badge numbers and division assignments of constables would normally be considered professional and not personal information, because this information appears in the context of a complaint about the professional conduct of these individuals, I find it qualifies as their personal information.

 

However, Records 70-74 are records of the appellant’s contact with the Toronto Department of Ambulance Services.  One word on Record 71 and one word on Record 72 could identify another individual, and only this word qualifies as the personal information of an individual other than the appellant.  The remaining parts of these records contain the personal information of the appellant only, and do not qualify for exemption under section 38(b).

 

Records 188, 189, 191 and 192 are printouts of the appellant’s criminal history.  These records do not contain personal information about any individual other than the appellant, and therefore they do not qualify for exemption under section 38(b).

 

Records 30, 35, 46, 64, 65, 76, 86, 92, 180 and 181 contain the name and badge number of the officers about whom the appellant made his complaints. Both the name and badge number are known to the appellant, and are, in fact, contained in other documents which have been disclosed to him in response to his complaints.  In my view, disclosure of this information would not constitute an unjustified invasion of the officers’ personal privacy in the circumstances of this appeal.

 

With respect to the personal information of other individuals in the records, the Police submit that the presumption in section 14(3)(b) applies.  This section states:

 

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 remaining personal information of other individuals severed from Records 32-34, 39, 40, 52, 68, 69, 87, 88, 90, 95, 97-99, 103, 104, 130, 132, 134, 135, 143, 158, 172, 175, 178, 190 and all of Records 77-81, 96, 113-118, 123-127, 168 and 195 was originally compiled during and is identifiable as part of an investigation into a complaint under Part V of the Police Services Act.  Accordingly, I find that section 14(3)(b) applies.  The information contained in the records is not the type of information described in section 14(4) and I find, therefore, that section 38(b) applies.

Relations With Other Governments

 

Introduction

 

The Police have claimed that section 9(1)(d) applies to Records 70-74, 188, 189, 191 and 192.

 

The Police also applied this exemption to information in Records 23 and 32.  I have found that the application of section 9(1)(d) to Record 23 would constitute a manifestly absurd result, and that section 38(b) applies to the information at issue in Record 32.  Accordingly, it is not necessary for me to address these records in this part of the discussion.

 

Section 9 states:

 

(1)  A head shall refuse to disclose a record if the disclosure could reasonably be expected to reveal information the institution has received in confidence from,

 

(a)        the Government of Canada;

 

(b)        the Government of Ontario or the government of a province or territory in Canada;

 

(c)        the government of a foreign country or state;

 

(d)       an agency of a government referred to in clause (a), (b) or (c); or

 

(e)        an international organization of states or a body of such an organization.

 

(2)        A head shall disclose a record to which subsection (1) applies if the government, agency or organization from which the information was received consents to the disclosure.

 

In order to deny access to a record under section 9(1), the Police must demonstrate that disclosure of the record could reasonably be expected to reveal information which the Police received from one of the government agencies or organizations listed in the section and that this information was received by the Police in confidence.

 

Whether information retrieved from CPIC is received in confidence

 

The Police submit that the information severed from Records 188 and 189 was supplied to the Canadian Police Information Centre (CPIC) by the Ontario Provincial Police (OPP), which administers the Ontario Suspension Control Centre.  A previous decision by the Police to deny access to this same type of information was reviewed in Order M-1055.  Former Inquiry Officer Marianne Miller found that section 9(1)(d) did not apply in that case:

 

In many circumstances, it will be clear that a reasonable expectation of

confidentiality exists among police agencies providing information to and retrieving information from the CPIC system.  I do not accept, however, that the OPP have a reasonable expectation of confidentiality against the appellant with regard to the specific information obtained from the CPIC system on this occasion.  All the information retrieved relates to the suspension of the appellant’s driving licence.  Therefore, I find that page 44 does not qualify for exemption under section 9(1) of the Act.  Accordingly, section 38(a) does not apply and the record should be disclosed to the appellant.

 

The Police submit that in Order M-1055, Inquiry Officer Miller narrowly interpreted section 9(1)(d) and that an argument exists for the continued application of this section to similar records.  The Police indicate that the fact that often the information may be the personal information of the appellant should not diminish the confidentiality expectation between the Suspension Control Centre of the OPP and the Police. 

 

An expectation of confidentiality must have been reasonable, and must have an objective basis.  In determining whether an expectation of confidentiality is based on reasonable and objective grounds, it is necessary to consider all the circumstances of the case.  It is not sufficient to simply assert an expectation of confidentiality with respect to the information received by the institution.

 

The Police quote section 7(1)(a) of the CPIC Manual as follows:

 

Information that is contributed to, stored in, and retrieved from CPIC is supplied in confidence by the originating agency for the purposes of assisting in the detection, prevention or suppression of crime and the enforcement of law.  CPIC information is to be used only for activities authorized by a police agency.

 

The CPIC computer system provides a central repository into which the various police jurisdictions within Canada enter electronic representations of information they collect and maintain.  Not all information in the CPIC data banks is personal information.  That which is, however, deserves to be protected from abuse.  Hence, a reasonable expectation of confidentiality exists between authorized users of CPIC that the personal information therein will be collected, maintained and distributed in compliance with the spirit of fair information handling practices.  However, the expectation that this information will be treated confidentially on this basis by a recipient is not reasonably held where a requester is seeking access to his own personal information.

 

There may be specific instances where the agency which made the entry on the CPIC system may seek to protect information found on CPIC from the data subject.  Reasons for this might include protecting law enforcement activities from being jeopardized.  These concerns will not be present in every case, and will largely depend on the type of information being requested.  The Police have not identified any particular concerns in this area in the circumstances of this appeal, and it is hard to conceive of a situation where an agency inputting suspended driver or criminal record information would require the Police to maintain its confidentiality from the data subject.  In fact, although members of the public are not authorized to access the CPIC system itself, the CPIC Reference Manual contemplates disclosure of criminal record information held therein to the data subject, persons acting on behalf of the data subject, and disclosure at the request or with the consent of the data subject.

Accordingly, I find that there is no reasonable expectation of confidentiality in the circumstances of this appeal, where the appellant is the requester and the information at issue relates to the suspension of the appellant’s drivers licence and a history of his previous charges and convictions, the fact of which he must be aware.  In my view, section 9(1)(d) does not apply to the information severed from Records 188, 189, 191 and 192.

 

Whether the Toronto Ambulance Service or municipal police services boards are agencies of the Government of Ontario

 

With respect to Records 70-74, the Police point out that in Order M-1004, former Inquiry Officer Mumtaz Jiwan accepted that municipal police services are agencies of the Government of Ontario.  This finding was based on the submission by the Police that the Police Services Act, the governing legislation with respect to police services in Ontario, is administered by the Ministry of the Solicitor General.  The Police submit that the Toronto Department of Ambulance Services is also an agency of the Government of Ontario, because its governing legislation, the Ambulance Act, is administered by the MOHLTC and the Minister has the authority to licence, establish standards, ensure compliance and monitor, inspect and evaluate ambulance services in Ontario.

 

The MOHLTC submits that this interpretation is not only wrong in law, but also would lead to absurd results in the operation of the Act as well as other legislation.

 

The MOHLTC submits that an “agency of the Government of Ontario” is one which satisfies the definition set out in the Management Board Secretariat (MBS) Directive entitled “Establishing and Scheduling of Agencies” published by Management Board of Cabinet (MBC).  In the Directive, an agency of the Government of Ontario is defined as:

 

•        an organizational unit with ongoing responsibilities, which is formally established by, or pursuant to, a specific Ontario statute, regulation or order-in-council; and to which the majority of members is appointed or elected by, or subject to the approval of, the Lieutenant Governor or a minister; or

 

•        a corporation in which the government, whether directly or indirectly, holds more than 50 per cent of the issued and outstanding shares with voting rights and/or appoints a majority of the members of the managing board; or

 

•        an organization (other than a ministry) designated or constituted as an agent of Her Majesty the Queen in the Right of Ontario.

 

The MOHLTC submits that the Toronto Ambulance Service is not a corporation, nor designated or constituted as an agency of Her Majesty the Queen in the Right of Ontario, nor are any of its members appointed or elected by or subject to the approval of the Lieutenant Governor in Council or the MOHLTC, and therefore does not fall within any of these three categories of government agencies. Rather, the MOHLTC submits, as an “upper tier municipality”, as defined in the Ambulance Act, the City of Toronto has established the Toronto Department of Ambulance Services to carry out its responsibilities under Part III of the Ambulance Act.

 

I accept the submission of the MOHLTC that the Toronto Department of Ambulance Services does

not fit any of the categories of agencies described in the MBS Directive outlined above.

 

Municipal police services boards are not a corporation, nor designated or constituted as an agency of Her Majesty the Queen in the Right of Ontario.  Although municipal police services boards have members appointed by both the province and the municipality, the majority of members are always appointed by the municipal council rather than the Government of Ontario, and I also find that municipal police services do not fit within any of the categories of agencies described above. 

 

Whether the Toronto Ambulance Service is a Crown agency

 

The directives and guidelines adopted by MBS and published from time to time by MBC are only statements of policy in the exercise of executive authority.  What is described as an agency of the Government of Ontario in the MBC directives is quite independent of the legal status of an organization as a Crown agency or agency of the Crown.  An agency subject to the MBC directive is not necessarily a Crown agency at law.

 

In Liability of the Crown at 10.2, Professor Hogg states that a public organization is a Crown agency if:

 

1.         There is a statutory provision expressly making them an agent of the Crown, or

 

2.         They fall within the definition of Crown agency in a statute such as the Crown Agency Act, or

 

3.         They meet the test of Crown agency established by the courts at common law.

 

There is no statutory provision expressly designating local or regional police services or ambulance services as agents of the Crown.  Therefore, these services are Crown agencies only if they fall within the statutory or common law definition of Crown agency.

 

The Crown Agency Act states:

 

In this Act, “Crown agency” means a board, commission, railway, public utility, university, manufactory, company or agency owned, controlled or operated by Her Majesty in right of Ontario, or by the Government of Ontario, or under the authority of the Legislature or the Lieutenant Governor in Council.

 

The leading case on the interpretation of this statutory provision is the decision of the Court of Appeal for Ontario in Ontario (Food Terminal Board) v. Ontario (Labour Relations Board), [1963] 2 O.R. 91.  In that case, the Court treated the issue of whether the Ontario Food Terminal Board falls within the scope of the definition of a Crown agency as set out in the Crown Agency Act and whether it was a Crown agency at common law as being subject to the same test.  Therefore, it is unnecessary to distinguish between Crown agency at common law and Crown agency under the Crown Agency Act for the purpose of deciding whether a public body in Ontario is an agency of the Crown.

The Crown agency test adopted by Justice Laidlaw, speaking for the Court of Appeal in the Ontario Food Terminal Board case, is as follows:

 

It is not possible for me to formulate a comprehensive and accurate test applicable in all cases to determine with any certainty whether or not an entity is a Crown agent.  The answer to that question depends in part upon the nature of the functions performed and for whose benefit the service is rendered.  It depends in part upon the nature and extent of the powers entrusted to it.  It depends mainly upon the nature and degree of control exercisable or retained by the Crown.

 

In R. v. Ontario Labour Relations Board, Ex. parte Ontario Housing Corporation, [1971] 2 O.R. 723, Grant J. applied a test of control by the Crown over the operations of the Ontario Housing Corporation and concluded the following at p. 728:

 

I am therefore convinced that the statutory restrictions and controls of the executive branch of Government to which the corporation is subject in the exercise of its functions creates it an agent or servant of the Crown at common law and that it is also a Crown agency with the meaning of the Crown Agency Act.

 

The Supreme Court of Canada cited this statement with approval in Westeel-Rosco Ltd. v. Board of Governors of South Saskatchewan Hospital Centre (1976), 69 D.L.R. (3d) 334 at 342-3:

 

Whether or not a particular body is an agent of the Crown depends upon the nature and degree of control which the Crown exercises over it.

 

It is the position of the MOHLTC that the level of control by the Crown required to support the control test is very extensive, and cites both the Ontario Food Terminal Board case, in which the Court of Appeal found that the Board could not be a Crown agent because it had independent authority over its operations, borrowing and leasing of property and Westeel-Rosco, in which the Supreme Court of Canada found that funding by the Crown and the Crown’s appointment of the members of the Board did not make the Board a Crown agency, in support of its position.

 

Ambulance services are regulated by the Ambulance Act. The Ontario government, through a Cabinet Minister, the Minister of Health and Long-Term Care, has the overall responsibility for the administration and enforcement of the legislation.  In addition, the Minister “is responsible for the administration and enforcement” of the Act. (s. 2).  The Minister has the duty and power to ensure the existence of an adequate system of ambulance services and communication services used to dispatch ambulances, throughout Ontario; to licence operators of ambulance services, to monitor, inspect and evaluate ambulance services and investigate complaints; and to fund and ensure the provision of air ambulance services (s. 4(1)).

 

The responsibilities of upper-tier municipalities, such as the City of Toronto, are set out in section 6, which reads, in part:

 

(1)               Every upper‑tier municipality shall,

 

(a)                on and after January 1, 1998 and except as otherwise provided

            by regulation, be responsible for all costs associated with the

            provision of land ambulance services in the municipality; and

 

(b)        on and after January 1, 2000, be responsible for ensuring the proper provision of land ambulance services in the municipality in accordance with the needs of persons in the municipality.

...

 

(8)        In discharging its responsibility under clause (1)(b) or subsection (7), an upper‑tier municipality shall,

 

(a)        select the persons who, if licensed to operate an ambulance service under section 8 or 9, will provide land ambulance services in the municipality;

 

(b)        enter into such agreements as are necessary to ensure the proper management, operation and use of ambulance services by the selected persons; and

 

(c)        ensure the supply of vehicles, equipment, services, information and any other thing necessary for the proper provision of land ambulance services by the selected persons.

...

 

6.1(5)   An upper‑tier municipality shall ensure, in providing land ambulance services itself or in selecting the person who will provide those services, that either the municipality or the other person, as the case may be, meets the criteria applied by the Ministry when determining whether to issue a licence to operate an ambulance service to a person.

 

Additionally, section 17.1(1) states:

 

17.1 (1) The council of a local municipality or upper‑tier municipality may pass

 by‑laws,

 

(a)        relating to the establishment or acquisition of an ambulance service and the maintenance, operation and use of such a service; and

 

(b)        with respect to ensuring the provision of land ambulance services in the municipality.

 

The MOHLTC submits:

 

What these provisions do is to establish a MOHLTC licensing system for ambulance services to ensure service quality and administrative integrity; the involvement of the MOHLTC in the Toronto Ambulance Services is limited to the establishment of overall policy to be followed consistently by all ambulance services throughout the province and a monitoring and regulatory function for their activities.  The organization of the Toronto Ambulance Service within the administrative structure of the City of Toronto clearly indicates that it is a Division of the Toronto Works and Emergency Services Department, whose Commissioner reports directly to the Chief Administrative Officer of the City who in turn reports to City Council.

 

...  It is clear that Toronto Ambulance is not “owned” or “operated” by the MOHLTC within the language of the Crown Agency Act.  Furthermore, if one undertakes the exercise set out in the Food Terminal case, i.e. an examination of the Ambulance Act as a whole and a consideration of all the provisions touching on control, it is the position of the MOHLTC that it does not exercise sufficient control over the Toronto Ambulance Service to conclude that the latter is a Crown agent.

 

I agree.

 

The Police rely primarily on the authority of the MOHLTC over licensing of persons who operate ambulance services, as well as the MOHLTC’s powers to establish standards, ensure compliance with standards, monitor, inspect and evaluate service providers as a basis for saying that the City of Toronto Department of Ambulance Services is an agency of the Ontario Government, and that the relationship between the Minister of Health and the Toronto Department of Ambulance Services is one of “principal” and “agent”.

 

As indicated earlier, these factors are insufficient to create a Crown agency relationship. An ambulance service would not be considered an agency of the Ontario Government solely for the reasons given by the Police.  Further, in my view, interpreting the term “agency of the government” to include any entity established by a provincial statute is not consistent with the purposes of the Act.  Such an approach would make such entities as the College of Physicians and Surgeons of Ontario, the Law Society of Upper Canada, and every municipality and municipal police service an agency of the government, and unnecessarily limit access by greatly increasing an institution’s discretionary power to deny access.

 

In summary, I agree with the MOHLTC position, and find that the Toronto Ambulance Service does not fall within the statutory or common law definition of Crown agency.  Accordingly, section 9(1)(d) does not apply to Records 70-74.

 

Whether municipal police services boards are Crown agencies

 

The Police also state that the relationship between municipal and regional police services and the Solicitor General is one of agent and principal.  Although it is not necessary for me to consider this aspect of their submission in light of my finding that there is no reasonably held expectation of confidentiality respecting the information in Records 188, 189, 191 and 192, the same reasoning applies.

 

The establishment and operation of regional and local police services in Ontario is governed, as indicated above, by the PSA, supplemented by other statutes such as the Municipal Act.  The regulatory regime under the PSA is that the Ontario Government, through the Solicitor General, establishes overall policy and professional standards for policing, provides advice and assistance to police services, provides training, carries out research and keeps statistics, monitors, and investigates.

 

The Ontario Government has its own police service, the Ontario Provincial Police (the OPP).  The OPP is under the direct control of a Commissioner appointed by the Ontario Cabinet.  The Commissioner’s “general control and administration” of the OPP is “subject to the Solicitor General’s direction”.  The Commissioner appoints the members of the service; however, Cabinet determines which officers will be appointed as “commissioned officers”.

 

In contrast, most local and regional municipal police services are established by the municipality rather than by the Ontario Government.  Under the PSA, “Every municipality...shall provide adequate and effective police services” (s. 4(1)).  The municipality is responsible for providing all the infrastructure necessary for providing these services (s. 4(3)).  The municipal council is responsible for establishing the police service (s. 5). 

 

The members of the police service are appointed by a police services board (s. 5) and the board has authority to terminate their employment. While appointment of auxiliary members of the police service is subject to the Solicitor General’s approval (s. 52), there is no provincial approval needed for appointment of any other police officers or the police chief or deputy chief.

 

These boards are of different sizes, depending on the size of the municipality.  In all cases, the provincial Cabinet appoints one or more members and the municipal council appoints some members, but the majority of members are always appointed by the municipal council rather than the Ontario Government.

 

These boards are “responsible for the provision of adequate and effective police services in the municipality”.  In addition to appointing the members and terminating employment of police officers (s.44(3)), they are responsible for determining objectives and priorities, establishing policies, recruiting and appointing the chief and deputy chief of police and determining their remuneration and working conditions, directing the chief of police and monitoring his or her performance (s. 31(1)).  The chief of police reports to the Board and is required by law to obey its orders and directives (s. 41(2)).

 

The PSA specifically provides that the members of the police service are under the board’s jurisdiction (s. 31(2)).  The board is authorized to make by-laws setting out rules for the effective management of the police service (s. 31(6)).  The board is responsible for establishing its own rules and procedures for carrying out its duties (s. 37).

 

The board submits a draft budget for operating the police service to the municipal council and council approves the budget (s. 39).

 

Accordingly, it is clear from the discussion above that those municipal police services that are established by municipalities are not Crown agencies, as the municipal council and police services boards, which are not agencies of the Crown, have very substantial control over hiring, firing, appointments, budget, infrastructure, and priorities for service.

Municipal police are not agents of the Ontario government within the general definitions of “agency”, “agent” and “principal” simply because they are not subject to the direction of the provincial governments.  They are established by and report to a municipality rather than to the provincial government.  Accordingly, I find that the municipal police services boards do not fall within the statutory or common law definition of Crown agency, and section 9(1)(d) does not apply.

 

Conclusion

 

Because there can be no expectation of confidentiality as against the appellant with respect to the information found on Records 188, 189, 191 and 192, I do not uphold the application of section 9(1)(d) to these records. Further, I do not agree with the Police that municipal and regional police services and the Toronto Department of Ambulance Services are agencies of the Government of Ontario, and I find that section 9(1)(d) does not apply to Records 188, 189 and 70-74.

 

ORDER:

 

1.         I uphold the decision of the Police not to disclose the information at issue in Records 32, 33, 34, 39, 40, 52, 68, 69, 77, 78, 79, 80, 81, 87, 88, 90, 95, 96, 97, 98, 99, 103, 104, 113, 114, 115, -118, 123-127, 130. 132, 134, 135, 143, 158, 168, 172, 175, 178, 190 and 195.

 

2.         I uphold the decision of the Police not to disclose part of Records 71 and 72.  The parts of Records 71 and 72 which should not be disclosed to the appellant have been highlighted on the copy of the records sent to the Police with this order.

 

3.         I order the Police to disclose the remaining records to the appellant by sending him a copy by May 1, 2000, but not before April 25, 2000.

 

4.         In order to verify compliance with the terms of this order, I reserve the right to require the Police to provide me with a copy of the records which are disclosed to the appellant pursuant to Provision 2.

 

 

 

 

 

 

Original signed by:                                                              March 22, 2000                   

Holly Big Canoe

Adjudicator