Access to Information Orders
Decision Information
NATURE OF THE APPEAL: Under the Freedom of Information and Protection of Privacy Act (the Act ), an individual requested that the Ministry of Public Safety and Security (now the Ministry of Community Safety and Correctional Services) (the Ministry) provide him with 12 items, listed as “A” to “L”, related to a numbered class action law suit. The Ministry’s initial decision granted him only partial access to some of the items. The individual appealed the Ministry’s decision. All of items B, C, D, E, F, G and J were otherwise dealt with and so were removed from the scope of this appeal. During mediation, the mediator confirmed the appellant’s outstanding requests and clarified the Ministry’s position. The Ministry also issued a revised decision letter to the appellant, dated April 16, 2003, in which it continued to deny access to the records, in whole or in part. The outstanding requested items, and their associated issues, are described below. Item A - a list of all property seized on October 17, 1996 from a particular location, with numerous other details also to be provided Item I - all information about the appellant provided to the Crown Attorney, the Justice of the Peace and Judges by the OPP and SSM from October 1996 to date With respect to items A and I, the Ministry found approximately 150 pages of responsive records. It denied access to those records, in whole or in part, on the basis of these three sections of the Act Section 49(a) (discretion to refuse requester’s own information) in conjunction with 13(1) - advice or recommendations 14(1)(c) and 14(2)(a) – law enforcement 14(1)(e) – endanger life or safety 14(1)(l) – facilitate commission of unlawful act 19 – solicitor-client privilege Section 49(b) (discretion to refuse requester’s own information) in conjunction with 21 – personal privacy [with reliance on sections 21(2)(f), 21(3)(b) and 21(3)(d)] Section 22(a) (information publicly available) Item H - the search warrant rationale provided to the Justice of the Peace, the time of application for and execution of the warrant, and who requested the warrant Item K - all information contained in the Firearms Interest Police (FIP) database concerning the appellant; and who posted, proof read and approved/justified the entries Item L - all information about the appellant contained on CPIC; and who posted, proof read and approved/justified the entries With respect to these three items, the Ministry advised that any responsive records would be in the custody of other institutions. The appellant’s position is that these records should be in the custody of the Ministry. Therefore, the issues of reasonable search and custody or control remain in dispute here. I initially sought representations from the Ministry. I received those representations and then shared the non-confidential portions of them with the appellant. I sought representations from the appellant, but he chose not to make a response. RECORDS: There are approximately 150 pages of records at issue in this appeal. They consist of correspondence, court documents, a crown brief synopsis, will say statements, general occurrence reports, property reports and disposition orders. ANALYSIS: RAISING NEW DISCRETIONARY EXEMPTIONS LATE The Ministry decided to apply section 22(a) to pages 42-71 of the records during the mediation phase of the process while it was reconsidering its position with respect to some of the records generally. The Ministry submits that applying this discretionary exemption late has had no adverse impact on the appellant given the nature of the exemption itself. These records consist of court documents that the Ministry claims are available to the public through the courts. Furthermore, the Ministry argues that the appellant is not prejudiced by their actions because these pages actually comprise the appellant’s own information. These pages comprise an application record filed in court on the appellant’s behalf by his lawyer. The Ministry argues that the appellant likely already has a copy of these pages. In Order P-658, former Inquiry Officer Anita Fineberg explained why the prompt identification of discretionary exemptions is necessary to maintain the integrity of the appeals process. She indicated that, unless the scope of the exemptions being claimed is known at an early stage in the proceedings, it would not be possible to effectively seek a mediated settlement of the appeal under section 51 of the Act . The objective of the policy enacted by the Commissioner’s office is to provide government organizations with a window of opportunity to raise new discretionary exemptions but not at a stage in the appeal where the integrity of the process is compromised or the interests of the appellant prejudiced. In determining whether to allow the Ministry to claim this discretionary exemption, I must balance the maintenance of the integrity of the appeals process against any evidence of extenuating circumstances advanced by the Ministry (Order P-658). I must also balance the relative prejudice to the Ministry and to the appellant in the outcome of my decision. In this case, the Ministry has not provided any evidence of extenuating circumstances. The Ministry’s initial decision in respect of the application record was made on November 25, 2002 and the Ministry then relied on sections 49(a) and (b). This office’s Confirmation of Appeal notice indicated that the Ministry would be permitted to claim additional discretionary exemptions until March 25, 2003. The Ministry dropped the section 49 exemptions and instead claimed the section 22(a) exemption on April 16, 2003, well beyond the notice period. The Ministry has not provided any explanation for its failure to claim the exemption initially and then beyond the notice period. This failure is especially problematic given the fact that the application record itself is dated October 5, 2000 for an application that was to be brought in court on October 11, 2000. Presumably, then, the application record has been a public court record since that time. Furthermore, while the Ministry submits that there is no prejudice to the appellant in the circumstances, it is clear that in fact there is no prejudice to the Ministry in denying the exemption claim. It is clear to me that the Ministry has the application record readily available, and clearly there are no confidentiality concerns with disclosing these pages. Given this fact and the lack of evidence of extenuating circumstances, on balance I find it appropriate to decline to consider the section 22(a) discretionary exemption that was raised late in this appeal process. As no other exemptions have been claimed for pages 42-71, I find that these records should be disclosed to the appellant. PERSONAL INFORMATION Section 47(1) of the Act gives individuals a general right of access to their own personal information held by a government body. Section 49 pro
Decision Content
NATURE OF THE APPEAL:
Under the Freedom of Information and Protection of Privacy Act (the Act), an individual requested that the Ministry of Public Safety and Security (now the Ministry of Community Safety and Correctional Services) (the Ministry) provide him with 12 items, listed as “A” to “L”, related to a numbered class action law suit. The Ministry’s initial decision granted him only partial access to some of the items. The individual appealed the Ministry’s decision.
All of items B, C, D, E, F, G and J were otherwise dealt with and so were removed from the scope of this appeal.
During mediation, the mediator confirmed the appellant’s outstanding requests and clarified the Ministry’s position. The Ministry also issued a revised decision letter to the appellant, dated April 16, 2003, in which it continued to deny access to the records, in whole or in part. The outstanding requested items, and their associated issues, are described below.
Item A a list of all property seized on October 17, 1996 from a particular location, with numerous other details also to be provided
Item I all information about the appellant provided to the Crown Attorney, the Justice of the Peace and Judges by the OPP and SSM from October 1996 to date
With respect to items A and I, the Ministry found approximately 150 pages of responsive records. It denied access to those records, in whole or in part, on the basis of these three sections of the Act
Section 49(a) (discretion to refuse requester’s own information) in conjunction with
• 13(1) - advice or recommendations
• 14(1)(c) and 14(2)(a) – law enforcement
• 14(1)(e) – endanger life or safety
• 14(1)(l) – facilitate commission of unlawful act
• 19 – solicitor-client privilege
Section 49(b) (discretion to refuse requester’s own information) in conjunction with
• 21 – personal privacy [with reliance on sections 21(2)(f), 21(3)(b) and 21(3)(d)]
Section 22(a) (information publicly available)
Item H the search warrant rationale provided to the Justice of the Peace, the time of application for and execution of the warrant, and who requested the warrant
Item K all information contained in the Firearms Interest Police (FIP) database concerning the appellant; and who posted, proof read and approved/justified the entries
Item L all information about the appellant contained on CPIC; and who posted, proof read and approved/justified the entries
With respect to these three items, the Ministry advised that any responsive records would be in the custody of other institutions. The appellant’s position is that these records should be in the custody of the Ministry. Therefore, the issues of reasonable search and custody or control remain in dispute here.
I initially sought representations from the Ministry. I received those representations and then shared the non-confidential portions of them with the appellant. I sought representations from the appellant, but he chose not to make a response.
RECORDS:
There are approximately 150 pages of records at issue in this appeal. They consist of correspondence, court documents, a crown brief synopsis, will say statements, general occurrence reports, property reports and disposition orders.
ANALYSIS:
RAISING NEW DISCRETIONARY EXEMPTIONS LATE
The Ministry decided to apply section 22(a) to pages 42-71 of the records during the mediation phase of the process while it was reconsidering its position with respect to some of the records generally. The Ministry submits that applying this discretionary exemption late has had no adverse impact on the appellant given the nature of the exemption itself. These records consist of court documents that the Ministry claims are available to the public through the courts. Furthermore, the Ministry argues that the appellant is not prejudiced by their actions because these pages actually comprise the appellant’s own information. These pages comprise an application record filed in court on the appellant’s behalf by his lawyer. The Ministry argues that the appellant likely already has a copy of these pages.
In Order P-658, former Inquiry Officer Anita Fineberg explained why the prompt identification of discretionary exemptions is necessary to maintain the integrity of the appeals process. She indicated that, unless the scope of the exemptions being claimed is known at an early stage in the proceedings, it would not be possible to effectively seek a mediated settlement of the appeal under section 51 of the Act.
The objective of the policy enacted by the Commissioner’s office is to provide government organizations with a window of opportunity to raise new discretionary exemptions but not at a stage in the appeal where the integrity of the process is compromised or the interests of the appellant prejudiced.
In determining whether to allow the Ministry to claim this discretionary exemption, I must balance the maintenance of the integrity of the appeals process against any evidence of extenuating circumstances advanced by the Ministry (Order P-658). I must also balance the relative prejudice to the Ministry and to the appellant in the outcome of my decision.
In this case, the Ministry has not provided any evidence of extenuating circumstances. The Ministry’s initial decision in respect of the application record was made on November 25, 2002 and the Ministry then relied on sections 49(a) and (b). This office’s Confirmation of Appeal notice indicated that the Ministry would be permitted to claim additional discretionary exemptions until March 25, 2003. The Ministry dropped the section 49 exemptions and instead claimed the section 22(a) exemption on April 16, 2003, well beyond the notice period. The Ministry has not provided any explanation for its failure to claim the exemption initially and then beyond the notice period. This failure is especially problematic given the fact that the application record itself is dated October 5, 2000 for an application that was to be brought in court on October 11, 2000. Presumably, then, the application record has been a public court record since that time.
Furthermore, while the Ministry submits that there is no prejudice to the appellant in the circumstances, it is clear that in fact there is no prejudice to the Ministry in denying the exemption claim. It is clear to me that the Ministry has the application record readily available, and clearly there are no confidentiality concerns with disclosing these pages. Given this fact and the lack of evidence of extenuating circumstances, on balance I find it appropriate to decline to consider the section 22(a) discretionary exemption that was raised late in this appeal process.
As no other exemptions have been claimed for pages 42-71, I find that these records should be disclosed to the appellant.