Access to Information Orders
Decision Information
NATURE OF THE APPEAL: The Owen Sound Police Services Board (the Police) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act ) for access to: i. Operator’s Manual – [a specific] Directional Radar Unit ii. Service Record – [a specific] Directional Radar Device iii. Service Record – [a specific] Tuning Fork The Police initially denied access to the responsive records on the basis that they were exempt from disclosure under the discretionary exemptions in sections 8(1)(a), (b), (c), (f) and 8(2)(a) of the Act (law enforcement). The requester, now the appellant, appealed the decision of the Police. During the mediation stage of the appeal, the Police notified the manufacturer of the radar unit (the affected party), seeking its views on the disclosure of the operator’s manual. The affected party objected to the disclosure of this record. As a result, the Police issued a new decision letter denying access to the operator’s manual on the basis that it was exempt under section 8(1)(c) and the mandatory exemption in section 10(1) (third party information). Also during mediation, the appellant agreed not to pursue access to records responsive to the second and third parts of his request. The Police indicated to the appellant that he could obtain access to the requested manual by attending at its offices, as is its normal practice. The appellant declined the opportunity to do so. As further mediation was not possible, the appeal was moved to the adjudication stage of the appeal process. I decided to seek the representations of the Police and the affected party initially. Both parties provided representations, the relevant portions of which were shared with the appellant along with a Notice of Inquiry. The appellant provided representations that were also shared with the Police and the affected party. I then received additional representations by way of reply from the affected party. RECORDS: The sole record at issue in this appeal is the User’s Manual for the specified directional radar unit referred to in the request. DISCUSSION: LAW ENFORCEMENT The Police take the position that the record is exempt from disclosure under the discretionary exemption in section 8(1)(c), which reads: A head may refuse to disclose a record where the disclosure could reasonably be expected to, reveal investigative techniques and procedures currently in use or likely to be used in law enforcement; General principles The term “law enforcement” is used in several parts of section 8, and is defined in section 2(1) as follows: “law enforcement” means, (a) policing, (b) investigations or inspections that lead or could lead to proceedings in a court or tribunal if a penalty or sanction could be imposed in those proceedings, and (c) the conduct of proceedings referred to in clause (b) Generally, the law enforcement exemption must be approached in a sensitive manner, recognizing the difficulty of predicting future events in a law enforcement context [ Ontario (Attorney General) v. Fineberg (1994), 19 O.R. (3d) 197 (Div. Ct.)]. Under section 8(1)(c), the Police must provide “detailed and convincing” evidence to establish a “reasonable expectation of harm”. Evidence amounting to speculation of possible harm is not sufficient [Order PO-2037, upheld on judicial review in Ontario (Attorney General) v. Goodis (May 21, 2003), Toronto Doc. 570/02 (Ont. Div. Ct.), Ontario (Workers’ Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464 (C.A.)]. In order to meet the “investigative technique or procedure” test under section 8(1)(c), the Police must show that disclosure of the technique or procedure to the public could reasonably be expected to hinder or compromise its effective utilization. The exemption normally will not apply where the technique or procedure is generally known to the public [Orders P-170, P-1487]. The techniques or procedures must be “investigative”. The exemption will not apply to “enforcement” techniques or procedures [Orders PO-2034, P-1340]. Representations of the parties The Police submit that the disclosure of the record could reasonably be expected to reveal a “technique or procedure” involving the operation of a “directional radar unit” by police officers “conducting an investigation into a possible violation of the Highway Traffic Act. ” They argue that the procedure described in the record is investigative in nature as it describes how the equipment is to be operated by the officer. The Police also indicate that it uses the radar devise described in the record on a daily basis and that this use has a law enforcement purpose. Finally, the Police submit that: . . . if the information contained within the User’s Manual of the [specified] Directional Radar Unit were to be made public it could reasonably be expected to hinder or compromise the effective utilization of the unit. Although the general public is aware that the police use the Radar Unit to enforce traffic violations, the specific operation of the Radar Unit is not known and could hinder the effective utilization of the unit and how the violations are prosecuted, thereby impeding future law enforcement. The representations of the affected party address only the application of section 10(1) to the record. The appellant makes the following submissions as part of his representations on the application of section 8(1)(c) to the record, arguing that the conclusions reached by the Police in their representations are unsupported by the facts that they rely on. Refuting the arguments put forward by the Police, the appellant submits that: The bottom falls out of the [Police] representations when they admit that they and the affected party both agree that the appellant could attend to the offices of the [Police] and review the manual. The appellant also argues that the disclosure of the information contained in the record would not reveal investigative techniques or procedures but would rather result in the disclosure of information relating strictly to enforcement . Findings In order to establish the application of section 8(1)(c), the Police must provide “detailed and convincing” evidence to establish a “reasonable expectation” that the disclosure of the record would reveal investigative techniques and procedures currently in use or likely to be used in law enforcement. It is incumbent upon the Police to establish that the disclosure of the record could reasonably be expected to result in the harm contemplated by the section. In my view, the Police have failed to do so in this case. I find that the evidence tendered by the Police
Decision Content
NATURE OF THE APPEAL:
The Owen Sound Police Services Board (the Police) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for access to:
i. Operator’s Manual – [a specific] Directional Radar Unit
ii. Service Record – [a specific] Directional Radar Device
iii. Service Record – [a specific] Tuning Fork
The Police initially denied access to the responsive records on the basis that they were exempt from disclosure under the discretionary exemptions in sections 8(1)(a), (b), (c), (f) and 8(2)(a) of the Act (law enforcement). The requester, now the appellant, appealed the decision of the Police.
During the mediation stage of the appeal, the Police notified the manufacturer of the radar unit (the affected party), seeking its views on the disclosure of the operator’s manual. The affected party objected to the disclosure of this record. As a result, the Police issued a new decision letter denying access to the operator’s manual on the basis that it was exempt under section 8(1)(c) and the mandatory exemption in section 10(1) (third party information).
Also during mediation, the appellant agreed not to pursue access to records responsive to the second and third parts of his request. The Police indicated to the appellant that he could obtain access to the requested manual by attending at its offices, as is its normal practice. The appellant declined the opportunity to do so.
As further mediation was not possible, the appeal was moved to the adjudication stage of the appeal process. I decided to seek the representations of the Police and the affected party initially. Both parties provided representations, the relevant portions of which were shared with the appellant along with a Notice of Inquiry. The appellant provided representations that were also shared with the Police and the affected party. I then received additional representations by way of reply from the affected party.
RECORDS:
The sole record at issue in this appeal is the User’s Manual for the specified directional radar unit referred to in the request.
DISCUSSION:
LAW ENFORCEMENT
The Police take the position that the record is exempt from disclosure under the discretionary exemption in section 8(1)(c), which reads:
A head may refuse to disclose a record where the disclosure could reasonably be expected to,
reveal investigative techniques and procedures currently in use or likely to be used in law enforcement;
General principles
The term “law enforcement” is used in several parts of section 8, and is defined in section 2(1) as follows:
“law enforcement” means,
(a) policing,
(b) investigations or inspections that lead or could lead to proceedings in a court or tribunal if a penalty or sanction could be imposed in those proceedings, and
(c) the conduct of proceedings referred to in clause (b)
Generally, the law enforcement exemption must be approached in a sensitive manner, recognizing the difficulty of predicting future events in a law enforcement context [Ontario (Attorney General) v. Fineberg (1994), 19 O.R. (3d) 197 (Div. Ct.)].
Under section 8(1)(c), the Police must provide “detailed and convincing” evidence to establish a “reasonable expectation of harm”. Evidence amounting to speculation of possible harm is not sufficient [Order PO-2037, upheld on judicial review in Ontario (Attorney General) v. Goodis (May 21, 2003), Toronto Doc. 570/02 (Ont. Div. Ct.), Ontario (Workers’ Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464 (C.A.)].
In order to meet the “investigative technique or procedure” test under section 8(1)(c), the Police must show that disclosure of the technique or procedure to the public could reasonably be expected to hinder or compromise its effective utilization. The exemption normally will not apply where the technique or procedure is generally known to the public [Orders P-170, P-1487].
The techniques or procedures must be “investigative”. The exemption will not apply to “enforcement” techniques or procedures [Orders PO-2034, P-1340].
Representations of the parties
The Police submit that the disclosure of the record could reasonably be expected to reveal a “technique or procedure” involving the operation of a “directional radar unit” by police officers “conducting an investigation into a possible violation of the Highway Traffic Act.” They argue that the procedure described in the record is investigative in nature as it describes how the equipment is to be operated by the officer. The Police also indicate that it uses the radar devise described in the record on a daily basis and that this use has a law enforcement purpose. Finally, the Police submit that:
. . . if the information contained within the User’s Manual of the [specified] Directional Radar Unit were to be made public it could reasonably be expected to hinder or compromise the effective utilization of the unit.
Although the general public is aware that the police use the Radar Unit to enforce traffic violations, the specific operation of the Radar Unit is not known and could hinder the effective utilization of the unit and how the violations are prosecuted, thereby impeding future law enforcement.
The representations of the affected party address only the application of section 10(1) to the record.
The appellant makes the following submissions as part of his representations on the application of section 8(1)(c) to the record, arguing that the conclusions reached by the Police in their representations are unsupported by the facts that they rely on. Refuting the arguments put forward by the Police, the appellant submits that:
The bottom falls out of the [Police] representations when they admit that they and the affected party both agree that the appellant could attend to the offices of the [Police] and review the manual.
The appellant also argues that the disclosure of the information contained in the record would not reveal investigative techniques or procedures but would rather result in the disclosure of information relating strictly to enforcement.
Findings
In order to establish the application of section 8(1)(c), the Police must provide “detailed and convincing” evidence to establish a “reasonable expectation” that the disclosure of the record would reveal investigative techniques and procedures currently in use or likely to be used in law enforcement. It is incumbent upon the Police to establish that the disclosure of the record could reasonably be expected to result in the harm contemplated by the section. In my view, the Police have failed to do so in this case.
I find that the evidence tendered by the Police is neither detailed nor convincing. Further, my review of the record itself does not lead me to conclude that it contains specific information relating to “investigative techniques and procedures” for the purposes of section 8(1)(c). Rather, the record simply describes how the radar device operates. I am not satisfied, based on the submissions of the Police, that the disclosure of the record would reveal the type of investigative techniques and procedures contemplated by the exemption.
I am also persuaded of the correctness of this finding by the fact that both the Police and the affected party are agreeable to allowing the appellant to have the right to view the record though they object to it being copied. In my view, it is simply incongruous to take the position that the disclosure of the record would give rise to the harms contemplated by section 8(1)(c) and yet be amenable to the appellant having the right to view the record in person.
THIRD PARTY INFORMATION
General principles
The affected party and the Police take the position that the record is exempt under the mandatory exemptions in section 10(1)(a), (b) and (c) of the Act, which state: