The requesters, now the appellants, appealed the decision to deny access in full to the requested records.  In their letter of appeal, the appellants also indicated that, in their view, the decision letter did not provide sufficiently detailed reasons as to why the undisclosed records and parts of records were withheld.

During the mediation stage of the appeal, the Police agreed to disclose a previously prepared index of records indicating which exemptions applied to each page of the record that was severed or withheld.  The Police also confirmed that they did not seek consent from affected parties to release records containing the personal information of these individuals.

I decided to seek the representations of the Police, initially.  I received their submissions, which were then shared, in their entirety, with the appellants, along with a copy of the Notice of Inquiry.  The appellants also made representations, which were shared with the Police.  Finally, the Police also made submissions by way of reply.

RECORDS:

The records at issue in this appeal consist of the following:

•                General Occurrence Hardcopy – GO#2001-29098, dated October 8, 2002 (pages 1-35);

•                Witness Statement (handwritten) 2003-Feb-15 (page 36);

•                Witness Statement (handwritten) 2003-Feb-15 (page 37);

•                Forensic Laboratory Report, dated March 13, 2001 (page 43-44);

•                Appendix “C” - grounds for warrant (pages 51-54);

•                Officers Notes (page 67, 69-115).

DISCUSSION:

PRELIMINARY ISSUE

Was the decision letter issued by the Police in accordance with the requirements of sections 19 and 22 of the Act?

In their letter of appeal, the appellants contend that the decision letter issued by the Police was inadequate as it failed to describe the information contained in the undisclosed records and the reasons why this information was withheld.  They argue that, “without sufficient detail we are unable to make a determination as to the relevance of the information.”

The relevant portions of the decision letter provided to the appellants by the Police on October 15, 2002 read as follows:

After reviewing the information a decision has been made to grant partial access to the information requested.  Access is denied to some information, pursuant to sections 8, 14 and 38 of the Act. 

The appellants rely on the provisions of sections 19 and 22 of the Act and submit, however, that:

. . . the Police merely recited the provisions contained in the Act.  File specific reasons were never provided.

. . .

. . . the appeal was not based on a lack of understanding of the provisions cited by the Police, this is not the issue.  The issue is how these provisions specifically relate to the file in question.

The appellants are entitled to case specific reasons as they relate to the provisions of the Act, not a mere regurgitation of the Act itself.

Section 19 of the Act states:

Where a person requests access to a record, the head of the institution to which the request is made or if a request is forwarded or transferred under section 18, the head of the institution to which it is forwarded or transferred, shall, subject to sections 20, 21 and 45, within thirty days after the request is received,

(a)       give written notice to the person who made the request as to whether or not access to the record or a part of it will be given; and

(b)       if access is to be given, give the person who made the request access to the record or part, and if necessary for the purpose cause the record to be produced.

Section 22(1)(b) of the Act provides:

(1)       Notice of refusal to give access to a record or part under section 19 shall set out,

(b)        where there is such a record,

(i)     the specific provision of this Act under which access is refused,

(ii)    the reason the provision applies to the record,

(iii)   the name and position of the person responsible for making the decision, and

(iv)   that the person who made the request may appeal to the Commissioner for a review of the decision.

In my view, the decision letter as originally issued by the Police was deficient as it did not specifically describe the reasons why the exemptions claimed apply to the records.  In Order M‑913, former Adjudicator Anita Fineberg reviewed the rationale behind section 22 and made the following comments:

The appellant submits that the decision letter of the Police was inadequate in that it failed to provide any reasons for denying access to the requested information.  He states that the decision merely refers to sections of the Act and that it is insufficient “... to allow our client to make informed decisions and meaningful representations in this appeal”.

. . .

The decision letter issued by the Police stated that access was being denied to the listing of police officers pursuant to sections 13, 14(1)(f) and 14(3)(d) of the Act.  The letter went on to note that  “... These sections apply because ...” followed by a paragraph setting out the language of these sections.

In my view, the purpose of the inclusion of the above information in a notice of refusal is to put the requester in a position to make a reasonably informed decision on whether to seek a review of the head's decision (Orders 158, P-235 and P-324).  In this case, I agree with the appellant that the decision letter of the Police should have provided him with reasons for the denial of access.  A restatement of the language of the legislation is not sufficient to satisfy the requirement in section 29(1)(b)(ii) [section 22(1)(b)(ii)] of the Act.  It does not provide an explanation of why the exemptions claimed by the Police apply to the record.  Section 29(1)(b)(i) [section 22(1)(b)(i)] already requires that the notice contain the provision of the Act under which access is refused.

Notwithstanding the inadequacy of the decision letter, the appellant has exercised his right of appeal and provided extensive representations which I have referred to in my disposition of all the issues relating to the information in this order.  In these circumstances, there would be no useful purpose served in requiring the Police to provide a new decision letter to the appellant.

I adopt the analysis and conclusion in Order M-913 with respect to the present appeal.  It is useful to an appellant for institutions to include in its decision letters the reason why exemptions are claimed.  This assists the appellant in making a determination as to whether to appeal an institution’s decision.  Having some better understanding of why the exemption applies also assists an appellant during the mediation process.  In the present appeal, I find that no useful purpose would be served by requiring the Police to provide a new decision letter, however.

PERSONAL INFORMATION

Section 36(1) of the Act gives individuals a general right of access to their own personal information held by an institution.  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 requester 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.

Section 38(b) of the Act introduces a balancing principle.  The institution must look at the information and weigh the requester's right of access to his or her own personal information against another individual's right to the protection of their privacy.  If the institution determines that release of the information would constitute an unjustified invasion of the other individual's personal privacy, then section 38(b) gives the institution the discretion to deny access to the personal information of the requester.

In determining whether the exemption in section 38(b) applies, sections 14(2), (3) and (4) 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 institution 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 14(2) [John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767]. 

A section 14(3) presumption can be overcome if the personal information at issue falls under section 14(4) of the Act or if a finding is made under section 16 of the Act that a compelling public interest exists in the disclosure of the record in which the personal information is contained which clearly outweighs the purpose of the section 14 exemption.  [See Order PO‑1764]

If none of the presumptions in section 14(3) applies, the institution must consider the application of the factors listed in section 14(2), as well as all other considerations that are relevant in the circumstances of the case.

The Police have relied on the "presumed unjustified invasion of personal privacy" in section 14(3)(b) of the Act and the factors listed under sections 14(2)(f), (h) and (i) of the Act.

As noted above, section 36(1) of the Act gives individuals a general right of access to their own personal information held by an institution.  Section 38 provides a number of exceptions to this general right of access.

Under section 38(a) of the Act, the Police have the discretion to deny an individual access to their own personal information in instances where the exemptions in sections 6, 7, 8, 9, 10, 11, 12, 13 or 15 would apply to the disclosure of that information. [my emphasis]

The Police take the position that Record 43-44 is exempt from disclosure under section 8(2)(a) while Record 51-54 is exempt under section 38(a), taken in conjunction with section 8(2)(a), which reads:

A head may refuse to disclose a record,

that is a report prepared in the course of law enforcement, inspections or investigations by an agency which has the function of enforcing and regulating compliance with a law;

In order for a record to qualify for exemption under section 8(2)(a) of the Act, the Police must satisfy each part of the following three part test:

1.         the record must be a report; and

2.         the report must have been prepared in the course of law enforcement, inspections or investigations; and

3.         the report must have been prepared by an agency which has the function of enforcing and regulating compliance with a law.

[See Order 200 and Order P-324]

Part 1 of the Test – Are Records 43-44 and 51-54 Reports?

The word “report” is not defined in the Act.  However, previous orders have found that in order to qualify as a report, a record must consist of a formal statement or account of the results of the collation and consideration of information.  Generally speaking, results would not include mere observations or recordings of fact (Order 200).

I find that the forensic report comprising Record 43-44 is clearly a “report” within the meaning of section 8(2)(a).  This record is formal statement of the results of the collation and consideration of information gathered by the Police in compiling evidence to support the laying of charges under the Criminal Code .

Similarly, Record 51-54 is a statement of the evidence gathered and the conclusions reached by the investigating officers of the crime scene and the interviews which they conducted.  I find that Record 51-54 also qualifies as a “report” for the purposes of section 8(2)(a).

Parts 2 and 3 of the Test under Section 8(2)(a)

With respect to the second and third parts of the test under section 8(2)(a), I find that Records 43-44 and 51-54 were prepared in the course of law enforcement investigations undertaken by the Ottawa Police Service, which is an agency which has the function of enforcing and regulating compliance with a law.

As a result, all three parts of the test under section 8(2)(a) have been satisfied with respect to Record 43-44 and it qualifies for exemption from disclosure under that exemption.  I further find that Record 51-54 is exempt under section 38(a), taken in conjunction with section 8(2)(a).

EXERSICE OF DISCRETION

As indicated above, sections 38(a) and (b) are discretionary exemptions.  Therefore, once it is determined that a record qualifies for exemption under sections 38(a) or (b), the Police must exercise their discretion in deciding whether or not to disclose it.

The Police submit that they have properly exercised their discretion in respect of the appellants’ request.  The Police state that in the circumstances of this request it has responded to the requester in an appropriate fashion, taking all relevant factors into consideration in deciding not to disclose all of the requested information. 

In the circumstances, I am not persuaded that the Police have erred in exercising their discretion.

ORDER:

I uphold the decision of the Police to deny access to the records.

Original signed by:                                                                        May 28, 2003                                        

Donald Hale