The requester (now the appellant) appealed the Ministry’s decision.

During the mediation stage of the appeal process, the Ministry undertook a further search for responsive records and found a video statement (the video statement) that had been provided by the appellant.  The Ministry issued a supplementary decision, denying access to the video statement on the basis of the exemptions claimed for the other records, as set out above.  The issue of access to the video statement was then added to this appeal.

Also during mediation, the appellant agreed to remove from the scope of the appeal the non-responsive information and the information for which the Ministry claimed the application of section 14(1)(l).  Accordingly, the information marked non-responsive and the application of section 14(1)(l) are no longer at issue in this appeal. 

As further mediation was not possible, the file was moved to the adjudication stage for an inquiry.

I commenced my inquiry by sending a Notice of Inquiry to the Ministry, seeking representations on the application of section 49(a), read with the aforementioned section 14(1) and section 19 exemptions, and section 49(b), read with section 21, to the information at issue.  The Ministry submitted representations and agreed to share them in their entirety with the appellant. 

In its representations, the Ministry indicates that it reconsidered the records and decided to release to the appellant additional information from pages 10 (record 4), 17 (record 6), 19 (record 7), 26 (record 10), 41 (record 16) and 63 (record 23).  The Ministry issued a supplementary decision letter to the appellant and the appellant has confirmed receipt of this decision letter and this additional information.  The appellant has advised our office that he remains interested in the information withheld by the Ministry, and that information remains at issue.

The Ministry also advises in its representations that it withdraws its reliance on sections 14(1)(d) and 14(2)(a).  Accordingly, the application of these exemptions is no longer at issue in this appeal.  However, the Ministry also raises for the first time the application of section 14(1)(e), together with section 49(a), in regard to records 21 (pages 57-59) and 22 (page 60).  The Ministry advises that its failure to raise this exemption earlier in the appeal process was an oversight.  Nevertheless, this raises the issue of the late raising of a discretionary exemption.

I then sought representations from the appellant on the Ministry’s late raising of section 14(1)(e) as well as on the application of section 49(a), read with sections 14(1)(e) and 19, to some of the information at issue, and section 49(b), read with section 21, to all of the information at issue.  I included with my Notice of Inquiry a complete copy of the Ministry’s submissions.  The appellant submitted representations in response.

RECORDS:

There are 26 records at issue in this appeal, including occurrence reports, police officers’ notes and a video statement.  A complete list of the records and the exemptions claimed is set out in the Index of Records (the Index) found in the Appendix at the conclusion of this order. 

DISCUSSION:

PRELIMINARY ISSUE

Late raising of a discretionary exemption

As stated above, in its representations the Ministry raised for the first time the application of the section 49(a)/14(1)(e) discretionary exemption for records 21 (pages 57-59) and 22 (page 60).  However, in light of my findings below regarding the application of section 49(b), read with section 21, it is not necessary for me to consider this issue.

PERSONAL INFORMATION

What constitutes “personal information”?

In order to determine which sections of the Act may apply, it is necessary to decide whether the records contain “personal information” and, if so, to whom it relates.  That term is defined in section 2(1) as follows:

“personal information” means recorded information about an identifiable individual, including,

(a)        information relating to the race, national or ethnic origin, colour, religion, age, sex, sexual orientation or marital or family status of the individual,

(b)        information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,

…

(d)       the address, telephone number, fingerprints or blood type of the individual,

(e)        the personal opinions or views of the individual except where they relate to another individual,

                        …

(g)        the views or opinions of another individual about the individual, and

(h)        the individual’s name where it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual;

The list of examples of personal information under section 2(1) is not exhaustive.  Therefore, information that does not fall under paragraphs (a) to (h) may still qualify as personal information [Order 11].

To qualify as personal information, it must be reasonable to expect that an individual may be identified if the information is disclosed [Order PO-1880, upheld on judicial review in Ontario (Attorney General) v. Pascoe, [2002] O.J. No. 4300 (C.A.)].

Parties’ representations

The representations submitted by the parties are not particularly helpful in regard to this issue.

The Ministry simply states that the information remaining at issue “contains the types of personal information” listed in the definition of personal information in section 2(1) and that the “identities of the individuals are evident from the content of the records.”

The appellant acknowledges that the records at issue contain the names of witnesses.

Therefore, I am left to consider the contents of the records in order to make my findings on this issue. 

On my review of the records, I find that they contain the personal information of the appellant, including

• his name, sex, date of birth, address and telephone number

• the views and opinions of other individuals about the appellant

• his criminal history

• his personal views and opinions 

Accordingly, I am satisfied that the records at issue contain the personal information of the appellant, pursuant to paragraphs (a), (b), (d), (e), (g) and (h) of the definition of personal information in section 2(1).

I also find that these records contain the personal information of individuals other than the appellant, including

• their names, sex, dates of birth, addresses and telephone numbers

• the appellant’s views and opinions about these other individuals

• in some cases, their criminal history

• their personal views and opinions

Accordingly, I am satisfied that the records at issue contain the personal information of individuals other than the appellant, pursuant to paragraphs (a), (b), (d), (e), (g) and (h) of the definition of personal information in section 2(1).

ARE THE RECORDS EXEMPT UNDER SECTION 49(b)?

General principles

Section 47(1) of the Act gives individuals a general right of access to their own personal information held by an institution.  Section 49 provides a number of exemptions from this right.

The Ministry takes the position that the undisclosed portions of the record are exempt under the discretionary exemption in section 49(b).  Under section 49(b), where a record contains the personal information of both the requester and another individual, and disclosure of the information would constitute an “unjustified invasion” of the other individual’s personal privacy, the institution may refuse to disclose that information to the requester.

If the information falls within the scope of section 49(b), that does not end the matter.  Despite this finding, the institution may exercise its discretion to disclose the information to the requester.  This involves a weighing of the requester’s right of access to his or her own personal information against the other individual’s right to protection of their privacy.

Sections 21(1) to (4) provide guidance in determining whether the “unjustified invasion of personal privacy” threshold under section 49(b) is met.  If the presumptions contained in paragraphs (a) to (h) of section 21(3) apply, the disclosure of the information is presumed to constitute an unjustified invasion of privacy, unless the information falls within the ambit of the exceptions in section 21(4), or if the “public interest override” in section 23 applies [John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767].  In this case, the Ministry has claimed that the presumption at section 21(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;

Even if no criminal proceedings were commenced against any individuals, section 21(3)(b) may still apply.  The presumption only requires that there be an investigation into a possible violation of law [Order P-242].

Parties’ representations

As stated above, the Ministry relies on the operation of the presumption in section 21(3)(b).  The Ministry states that the information contained in the records at issue was “compiled and is part of [Ontario Provincial Police (OPP)] investigations into possible violations of law.”  The Ministry submits that the information in the records “documents the separate law enforcement investigations undertaken by the OPP primarily into issues involving the appellant and other individuals.”  The Ministry, with reference to the records, states that the matters investigated include “alleged incidents of property damage, trespass to property, theft, fraud, assault, domestic assault and harassment.”  The Ministry states that in some cases the incidents have resulted in Criminal Code  charges being laid.

The Ministry also relies on the application of section 21(2)(f) to bolster its position on the non-disclosure of the information at issue.  The Ministry submits that “many of the records [at issue] concern highly sensitive incidents that involve elements of personal safety issues.”

The Ministry states that it “carefully considered the application of the absurd result principle with respect to the non-disclosure of the personal information remaining at issue.”  The Ministry submits that due to the “highly sensitive incidents” at issue in the records, disclosure of additional information would be inconsistent with the application of the discretionary exemption in section 49(b).   

The Ministry submits that none of the circumstances outlined in section 21(4) would operate to rebut the application of the presumption under section 21(3)(b).  The Ministry also submits that there is no compelling public interest in the disclosure of the exempt information.

The appellant does not offer representations that specifically address the application of the section 21(3)(b) presumption.  The appellant states that he has a right to his personal information contained in the video statement.  In addition, perhaps commenting on the Ministry’s reliance on section 21(2)(f), the appellant adds, without elaboration, that he does not believe the information at issue in the records is highly sensitive. 

From there, the focus of the appellant’s representations appears to be on his motives for seeking the information at issue.  In this regard, the appellant states he has commenced a civil proceeding against the OPP in which he takes issue with the manner in which the police officers involved in various investigations conducted their business.  While he states that he does not object to the names of the witnesses being withheld, the appellant believes that he should have access to the other severed information in order to shed light on alleged mistakes made by the police officers during the course of their investigations.

Analysis and findings

I acknowledge that the appellant would like me to consider his personal motives for wanting the severed information.  However, on my review of the parties’ representations and the records at issue, it is clear that the personal information contained in the records was compiled as part of several investigations into possible violations of law under the Criminal Code  and possibly under the Provincial Offences Act.  Therefore, I find that the section 21(3)(b) presumption applies to the information at issue, with one notable exception. 

As Senior Adjudicator John Higgins stated in Order M-444, “it is an established principle of statutory interpretation that an absurd result, or one which contradicts the purposes of the statute in which it is found, is not a proper implementation of the legislature's intention.” 

In that case, Senior Adjudicator Higgins found that applying the section 14(3)(b) presumption [the municipal Act equivalent of section 21(3)(b)] to deny access to a statement which a requester provided to the Metropolitan Toronto Police Services Board (as it then was) in the first place would create a “manifestly absurd result”.   Accordingly, he found that the section 14(3)(b) presumption did not apply to this information and, in the absence of other factors favouring non-disclosure, found that the exemption in section 38(b) [the municipal Act equivalent of section 49(b)] did not apply to the information at issue in the records.

This approach has been followed by this office in other cases involving statements provided by requesters (see, for example, M-451, M-613 and MO-1855).

Turning to this case, the video statement is precisely the same type of record that was at issue in Order M-444 and, for the same reasons outlined by Senior Adjudicator Higgins, I find that applying the section 21(3)(b) presumption to the video statement would lead to an absurd result. 

I acknowledge that the Ministry has raised the application of the section 21(2)(f) in favour of non-disclosure.  However, the Ministry’s representations do not specifically address the circumstances surrounding the making of the video statement and its contents.  I note that the video statement was provided by the appellant in furtherance of his allegations of assault against a named individual.  The contents of this record were provided exclusively by the appellant to the OPP.   In my view, the Ministry has not provided sufficient evidence to establish that the contents are sufficiently sensitive to warrant denying the appellant access to his statement.  Accordingly, I find that the appellant’s video statement does not qualify for exemption under section 38(b) of the Act.

Having found that the section 21(3)(b) presumption applies to all of the information at issue with the exception of the video statement, I am not at liberty to consider other factors in support of disclosure of this information aside from the possible application of section 21(4) or the section 23 “public interest override”. 

I have considered the application of the exceptions contained in section 21(4) of the Act and find that the personal information at issue does not fall within the ambit of this provision.  In addition, the application of the “public interest override” at section 23 of the Act was not raised, and I find that it has no application in the circumstances of this appeal.

In conclusion, as a result of the application of section 21(3)(b), I find that the disclosure of the personal information at issue in the records, with the exception of the video statement, would be an unjustified invasion of the personal privacy of individuals other than the appellant.  Therefore, this information is exempt under section 49(b).  However, with regard to the video statement, I must now review whether it qualifies for exemption under section 49(a), read with sections 14(1)(e) or 19.

IS THE VIDEO STATEMENT EXEMPT UNDER SECTION 49(a), READ WITH SECTIONS 14(1)(e) and/or 19?

General principles

Under section 49(a), an institution has the discretion to deny an individual access to their own personal information where the exemptions in sections 14 and 19 (among others) would apply to the disclosure of that information.

Because section 49(a) is a discretionary exemption, even if the information falls within the scope of one of the listed sections, the Ministry must nevertheless consider whether to disclose the information to the requester.

In this appeal, the Ministry relies on section 49(a), read in conjunction with sections 14(1)(e) and/or 19, to deny access to the video statement.

Section 14(1)(e):  life or physical safety

Sections 14(1)(e) states:

A head may refuse to disclose a record where the disclosure could reasonably be expected to,

endanger the life or physical safety of a law enforcement officer or any other person;

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.)].

In the case of section 14(1)(e), the institution must provide evidence to establish a reasonable basis for believing that endangerment will result from disclosure.  In other words, the institution must demonstrate that the reasons for resisting disclosure are not frivolous or exaggerated [Ontario (Information and Privacy Commissioner, Inquiry Officer) v. Ontario (Minister of Labour, Office of the Worker Advisor) (1999), 46 O.R. (3d) 395 (C.A.)].

It is not sufficient for an institution to take the position that the harms under section 14 are self-evident from the record or that a continuing law enforcement matter constitutes a per se fulfilment of the requirements of the exemption [Order PO-2040; Ontario (Attorney General) v. Fineberg].

In the case of section 14(1)(e), the institution must provide evidence to establish a reasonable basis for believing that endangerment will result from disclosure.  In other words, the institution must demonstrate that the reasons for resisting disclosure are not frivolous or exaggerated.

In this appeal, the representations from the Ministry on the possible application of this exemption are brief and general in nature.  The Ministry simply states that the release of the information at issue may reasonably be expected to endanger the life and physical safety of individuals.  The Ministry does not specifically address the contents of the video statement in its representations.

The appellant does not make representations on the application of the section 49(a) exemption, read in conjunction with 14(1)(e). 

On my review of the video statement, I am not satisfied that the Ministry has established that there is a reasonable basis for its belief that the disclosure of this information could endanger the life or physical safety of a law enforcement officer or any other person.

Accordingly, I find that section 49(a), in conjunction with section 14(1)(e), does not apply in the circumstances of this case.

Section 19: solicitor-client privilege

At the date the request was filed, section 19 stated:

A head may refuse to disclose a record that is subject to solicitor‑client privilege or that was prepared by or for Crown counsel for use in giving legal advice or in contemplation of or for use in litigation.

Section 19 was recently amended (S.O. 2005, c.28, Sched. F, s.4.).  However, the amendments are not retroactive, and the version I have just quoted therefore applies in this appeal.  In any event, the amendments, which address the addition of universities to the body of “institutions” subject to the Act, have no bearing in this case.

Section 19 contains two branches, common law privilege (branch 1) and statutory privileges (branch 2).  Branch 1 does not encompass common law litigation privilege (see Orders PO-2483, PO-2484).  The institution must establish that one or the other (or both) branches apply. 

In this case, with regard to the video statement the Ministry relies on branch 2 of the section 19 solicitor-client privilege exemption.

Branch 2:  statutory privileges

Branch 2 is a statutory exemption that is available in the context of counsel employed or retained by an institution giving legal advice or conducting litigation. 

In this case, on the basis of its representations, the Ministry appears to take the position that the video statement is subject to the statutory litigation privilege.

The Ministry states that the video statement is “contained in a Crown brief that came into existence as a result of a criminal prosecution.”  The Ministry states that the Crown brief was prepared in “contemplation of litigation.”  The Ministry submits that the Crown brief is “a record of the police findings into an investigation and is created especially for contemplated litigation.”  The Ministry states that the Crown brief contains the “underlying factual material and considerations for use by Crown counsel in a criminal prosecution” and is “used by Crown counsel as an aid to the conduct of litigation.”  The Ministry submits that the video statement is “contained in the Crown brief relating to a criminal matter that was heard on June 13, 2005” but asserts that “the exemption under branch 2 does not end when the relevant litigation has been completed.”

The appellant does not make representations on the application of section 49(a), read in conjunction with the section 19 solicitor-client privilege exemption.

In Order PO-2494, Assistant Commissioner Brian Breamish recently dealt with the treatment of records held by the police that the same Ministry argued formed part of the Crown brief.  In finding that certain records were not “prepared for Crown counsel in contemplation of or for use in litigation” within the meaning of branch 2 of section 19, the Assistant Commissioner states, in part:

With respect to the remaining records, I do not accept the Ministry’s position that records held by the police should automatically be seen as meeting the “prepared for Crown counsel in contemplation of or for use in litigation” test on the basis that copies of them found their way into the Crown brief.

The police prepared all of the records at issue for the purpose of investigating the matter involving the appellant, and deciding whether to lay criminal charges against her.  This purpose is distinct from Crown counsel’s purpose of deciding whether or not to prosecute criminal charges and, if so, using the records to conduct the litigation.

In effect, police investigation records such as officers’ notes and witness statements found in a Crown brief are “prepared” twice:  first, when the record is first brought into existence, and second when the police, applying their expertise, exercise their discretion and select individual records for inclusion in the Crown brief, and then make copies of those records to deliver to Crown counsel.

The fact that copies of some of the records found their way into the Crown brief does not alter the purpose for which the records were originally prepared and are now held by the Ministry.

There is no question that the Act contains provisions that protect the process where the police investigate potential violations of law and decide whether to lay criminal charges.  This protection is found primarily in section 14 of the Act, the comprehensive “law enforcement” exemption.

However, in this case, the Ministry does not rely on section 14 of the Act.

If I were to accept that the branch 2 privilege applied in these circumstances, this arguably would extend section 19 to almost any investigative record created by the police, thereby undermining the purpose of the Act.  As stated in Public Government for Private People:  The Report of the Commission on Freedom of Information and Individual Privacy 1980, vol. 2 (Toronto: Queen’s Printer, 1980) (the Williams Commission Report):

. . . The broad rationale of public accountability underlying freedom of information schemes . . . requires some degree of openness with respect to the conduct of law enforcement activity . . . (p. 294)

Another difficulty with accepting the Ministry’s position is that arguably police forces across Ontario would no longer have the discretion to disclose investigative records, out of a perceived obligation to “protect” the Crown’s privilege.

Historically, and in general, the police have not relied on the solicitor-client privilege exemption for this type of material (as opposed to the law enforcement and privacy exemptions).  Accordingly, the police have used their discretion to disclose records where appropriate.  If I were to find that privilege applies here, the result could be that records that the police now routinely disclose would be withheld in the future, fundamentally altering a long-standing disclosure practice of police forces across Ontario [see, for example, Orders M-193, M-564, MO-1759, MO-1791, P-1214, P-1585, PO-2254, PO-2342].

I concur with Assistant Commissioner Beamish’s reasoning and apply it to the circumstances in this case.   Based on the evidence before me, I find that the video statement was not prepared by Crown counsel by or for use in litigation.  In my view, the video statement was taken by the OPP for the purpose of investigating a matter involving the appellant, and deciding whether to lay criminal charges against an individual alleged by the appellant to have assaulted him.  As in Order PO-2494, this purpose is distinct from Crown counsel’s purpose of deciding whether or not to prosecute criminal charges and, if so, using the records to conduct the litigation.  Moreover, the appellant’s request was for information in the hands of the OPP. 

For all of the above reasons, I find that branch 2 of the section 19 solicitor-client privilege exemption does not apply to the video statement.

Finally, in contrast to the circumstances in Order PO-2494 where the section 14 law enforcement exemptions were not claimed, in this case the Ministry has relied on section 14(1)(e).  However, I have already found that section 14(1)(e), read with section 49(a), does not apply in this case. 

EXERCISE OF DISCRETION

The section 49(a) and 49(b) exemptions are discretionary, and permit an institution to disclose information, despite the fact that it could withhold it.  An institution must exercise its discretion.  On appeal, the Commissioner may determine whether the institution failed to do so.

In addition, the Commissioner may find that the institution erred in exercising its discretion where, for example,

• it does so in bad faith or for an improper purpose

• it takes into account irrelevant considerations

• it fails to take into account relevant considerations

In either case this office may send the matter back to the institution for an exercise of discretion based on proper considerations [Order MO-1573].  This office may not, however, substitute its own discretion for that of the institution [section 43(2)].

Relevant considerations

Relevant considerations may include those listed below.  However, not all those listed will necessarily be relevant, and additional unlisted considerations may be relevant [Orders P-344, MO-1573]:

• the purposes of the Act, including the principles that

○    information should be available to the public

○    individuals should have a right of access to their own personal information

○    exemptions from the right of access should be limited and specific

○    the privacy of individuals should be protected

• the wording of the exemption and the interests it seeks to protect

• whether the requester is seeking his or her own personal information

• whether the requester has a sympathetic or compelling need to receive the information

• whether the requester is an individual or an organization

• the relationship between the requester and any affected persons

• whether disclosure will increase public confidence in the operation of the institution

• the nature of the information and the extent to which it is significant and/or sensitive to the institution, the requester or any affected person

• the age of the information

• the historic practice of the institution with respect to similar information

The Ministry states that it is “mindful of the major purposes and objects of the [Act]” and submits that it “considers each and every access request on an individual, case-by-case basis.”  The Ministry states that it “carefully weighed the appellant’s right of access to records that contain his personal information against other individuals’ rights to privacy protection.”  In deciding to provide the appellant with partial access, the Ministry states that it took into account that the appellant is an individual rather than an organization and that it considered providing the appellant with total access.  The Ministry concluded that “[g]iven the highly sensitive nature of the various incidents in question”, it was satisfied that releasing the information at issue would “cause personal distress to identifiable individuals.”  The Ministry states that it also took into account that the incidents documented in the records took place in the “recent past (2005)”.

The appellant did not present representations that specifically addressed the exercise of discretion issue.

As indicated above, I have found that the appellant is entitled to access to his video statement, on the basis that denying access to it would produce an “absurd result” and contradict the purposes of the Act.  With regard to the other records, which I have found qualify for exemption under section 49(b), I am satisfied that the Ministry carefully considered relevant matters and did not err in the exercise of its discretion by deciding not to release the undisclosed information in these records to the appellant. 

ORDER:

1.         I uphold the decision of the Ministry not to disclose the information at issue in records 1 through 25, as set out in the attached Appendix. 

2.         I order the Ministry to disclose to the appellant the video statement (record 26 in the aforementioned Appendix) by sending a complete unsevered videotape copy to him by October 2, 2006.

3.         In order to verify compliance, I reserve the right to require the Ministry to provide me with a copy of the video statement disclosed to the appellant pursuant to provision 2, upon request.

Original Signed by:                                                                                   August 30, 2006                                    

Bernard Morrow