Access to Information Orders
Decision Information
NATURE OF THE APPEAL: The Durham Regional Police Service (the Police) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ). The requester referred to a police file number. He stated that he had filed a complaint on December 17, 1999 and that a Staff Sergeant of the Professional Standards Branch had completed an investigation of the matter on March 20, 2000. The requester indicated that he was seeking copies of the following four documents that had been used as documentary evidence referred to on pages 13 and 14 of the Staff Sergeant's report: Letter to Crown Attorney's Office dated February 7, 2000 (3 pages) Letter from Crown Attorney's Office dated February 9, 2000 (1 page) Fax Transmission from [a named law firm] dated January 7, 2000 (5 pages) Letter to named individual, dated January 4, 2000 (1 page) The Police denied access to the records on the basis that they fell within the scope of the exclusion provided by section 52(3) of the Act . The requester, now the appellant, appealed the Police's decision. During mediation, it was confirmed that the appellant had filed two complaints against two different police officers under the Police Services Act (the PSA ), and had also commenced a civil lawsuit. The Police took the position that the four records relate to both complaints and possibly to the civil lawsuit. The Mediator set out the status and chronology of the complaints and civil lawsuits in her Report of Mediator provided to the parties at the end of the mediation stage of the appeal: In October 1994, the Police criminally charged the appellant. The charges were withdrawn in March 1996. Following the withdrawal of the criminal charges, the appellant filed a civil lawsuit against the Police for a large amount of money in damages. The lawsuit is presently ongoing. The particulars of the lawsuit are not known, however it appears that the appellant is alleging that the police tampered with a videotape. The appellant also filed complaints against two officers who are employed by the Police, details as follows: Complaint against Officer #1 In 1999, the appellant filed a complaint against Officer #1 with the Professional Standards Branch of the Police. Officer #1 was involved in the 1994 police investigation of the appellant. In March 2000, the Professional Standards Branch found the appellant's complaint against Officer #1 to be unsubstantiated. The appellant requested a review of the decision of the Professional Standards Branch by the Ontario Civilian Commission on Police Services (OCCPS). In July 2000, the OCCPS upheld the decision of the Professional Standards Branch. According to the appellant, the matter is still ongoing, as he has requested reviews. It is not clear whether the appellant applied for a judicial review of the July 2000 OCCPS decision, or whether by "review", he is referring to the complaint he subsequently filed relating to Officer #2. Complaint against Officer #2 The appellant filed a complaint with the Police Standards Branch of the Police against Officer #2. Officer #2 is the officer who investigated the appellant's complaint against Officer #1. The appellant alleges that Officer #2 had a conflict of interest, because at the time he investigated the appellant's complaint against Officer #1, he was also assisting the Police in its defence of the ongoing civil lawsuit with the appellant. The Professional Standards Branch did not uphold the appellant's complaint against Officer #2. The appellant requested a review by the OCCPS. OCCPS referred the matter back to the Professional Standards Branch, on the basis that it was a "service" complaint, rather than a "conduct" complaint. The Professional Standards Branch considered the service complaint in August 2001, and decided not to uphold the appellant's complaint. The appellant advised the Mediator that he is intending to seek a review of this decision. Mediation was not successful, and the appeal proceeded to the adjudication stage. I sent a Notice of Inquiry initially to the Police, who provided representations in response. These representations were provided to the appellant, together with a copy of the Notice. The appellant also provided representations. RECORDS:
Decision Content
NATURE OF THE APPEAL:
The Durham Regional Police Service (the Police) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act). The requester referred to a police file number. He stated that he had filed a complaint on December 17, 1999 and that a Staff Sergeant of the Professional Standards Branch had completed an investigation of the matter on March 20, 2000. The requester indicated that he was seeking copies of the following four documents that had been used as documentary evidence referred to on pages 13 and 14 of the Staff Sergeant’s report:
• Letter to Crown Attorney’s Office dated February 7, 2000 (3 pages)
• Letter from Crown Attorney’s Office dated February 9, 2000 (1 page)
• Fax Transmission from [a named law firm] dated January 7, 2000 (5 pages)
• Letter to named individual, dated January 4, 2000 (1 page)
The Police denied access to the records on the basis that they fell within the scope of the exclusion provided by section 52(3) of the Act.
The requester, now the appellant, appealed the Police’s decision.
During mediation, it was confirmed that the appellant had filed two complaints against two different police officers under the Police Services Act (the PSA), and had also commenced a civil lawsuit. The Police took the position that the four records relate to both complaints and possibly to the civil lawsuit.
The Mediator set out the status and chronology of the complaints and civil lawsuits in her Report of Mediator provided to the parties at the end of the mediation stage of the appeal:
• In October 1994, the Police criminally charged the appellant.
• The charges were withdrawn in March 1996.
• Following the withdrawal of the criminal charges, the appellant filed a civil lawsuit against the Police for a large amount of money in damages. The lawsuit is presently ongoing. The particulars of the lawsuit are not known, however it appears that the appellant is alleging that the police tampered with a videotape.
• The appellant also filed complaints against two officers who are employed by the Police, details as follows:
Complaint against Officer #1
• In 1999, the appellant filed a complaint against Officer #1 with the Professional Standards Branch of the Police. Officer #1 was involved in the 1994 police investigation of the appellant.
• In March 2000, the Professional Standards Branch found the appellant’s complaint against Officer #1 to be unsubstantiated.
• The appellant requested a review of the decision of the Professional Standards Branch by the Ontario Civilian Commission on Police Services (OCCPS). In July 2000, the OCCPS upheld the decision of the Professional Standards Branch.
• According to the appellant, the matter is still ongoing, as he has requested reviews. It is not clear whether the appellant applied for a judicial review of the July 2000 OCCPS decision, or whether by “review”, he is referring to the complaint he subsequently filed relating to Officer #2.
Complaint against Officer #2
• The appellant filed a complaint with the Police Standards Branch of the Police against Officer #2. Officer #2 is the officer who investigated the appellant’s complaint against Officer #1. The appellant alleges that Officer #2 had a conflict of interest, because at the time he investigated the appellant’s complaint against Officer #1, he was also assisting the Police in its defence of the ongoing civil lawsuit with the appellant.
• The Professional Standards Branch did not uphold the appellant’s complaint against Officer #2.
• The appellant requested a review by the OCCPS. OCCPS referred the matter back to the Professional Standards Branch, on the basis that it was a “service” complaint, rather than a “conduct” complaint.
• The Professional Standards Branch considered the service complaint in August 2001, and decided not to uphold the appellant’s complaint.
• The appellant advised the Mediator that he is intending to seek a review of this decision.
Mediation was not successful, and the appeal proceeded to the adjudication stage. I sent a Notice of Inquiry initially to the Police, who provided representations in response. These representations were provided to the appellant, together with a copy of the Notice. The appellant also provided representations.
RECORDS:
As noted earlier, the records at issue are:
1. Letter to Crown Attorney’s Office dated February 7, 2000 (3 pages)
2. Letter from Crown Attorney’s Office dated February 9, 2000 (1 page)
3. Fax Transmission from [a named law firm] dated January 7, 2000 (5 pages)
4. Letter to named individual, dated January 4, 2000 (1 page)
DISCUSSION:
Section 52(3) is record-specific and fact-specific. If section 52(3) applies to the records, and none of the exceptions found in section 52(4) applies, then the records are outside the scope of the Act.
The Police claim that the records fall within the scope of section 52(3)3.
Section 52(3)3
Sections 52(3)3 reads: