ORDER MO-2165

 

Appeal MA06-358

 

Barrie Police Services Board

NATURE OF THE APPEAL:

 

The Barrie Police Services Board (the Police) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for the following records:

 

1. [An identified file number] and copies of officer’s notes;
2. [Another identified file number] and copies of officer’s notes;
3. Record of Police attendance at the request of [a named individual at a specified address] in 2004, 2005 and 2006 and copies of the officer’s notes; and
4. Record of Police attendance at [the requester’s] residence at the request of [an identified individual at a specified address], and copies of police officer’s notes.

 

The Police responded to the request by issuing a decision letter in which they granted partial access to the records requested.  Access to the remaining portions of the records was denied on the basis of the exemptions in section 38(a) (discretion to deny access to requester’s own information), in conjunction with section 8(2)(a) (law enforcement report); and sections 14(1) and 38(b) (invasion of privacy), with reference to the presumption in section 14(3)(b) and the factors in sections 14(2)(f) and (h).

 

The requester, now the appellant, appealed the decision of the Police to deny access to the responsive records.  The appellant also appealed on the basis that certain information contained in the records was incorrect, and that it ought to be corrected.

 

During mediation, the Police issued a revised decision letter to the appellant, in which they identified that they were no longer relying on the exemptions in sections 38(a) or 8(2)(a).  The Police also provided an index of records to the appellant.  Also during mediation, the mediator contacted certain affected parties to determine whether they consented to the release of their personal information; however, consent to the release of the information was not obtained.

 

With respect to the issue of whether certain information ought to be corrected, the mediator discussed this issue with the parties; however, the issue was not resolved, and the correction issue remained a possible issue in this appeal.

 

In addition, in the course of this appeal, the appellant identified her concern that additional records exist.  In particular, the appellant referred to a petition which was mentioned in a particular report, and stated that she believed the Police have a copy of it.  During mediation, the Police advised that they did not have a copy of the identified petition.  The appellant was not satisfied with this response, and the issue of the reasonableness of the search for records is also an issue in this appeal.

 

Mediation did not resolve the appeal, and it was transferred to the inquiry stage of the process.  I sent a Notice of Inquiry to the Police, initially, and the Police provided representations in response.  I then sent the Notice of Inquiry, along with a copy of the Police’s representations, to the appellant, who also provided me with representations.

 

RECORDS:

 

The records responsive to this request consist of 12 records totalling 31 pages.  The portions of the records remaining at issue consist of certain severances made to the records.  The twelve records consist of six separate numbered occurrence summaries and reports, and six sets of police officer’s notes relating to those occurrences.

 

DISCUSSION:

 

PRELIMINARY ISSUE – IS CORRECTION OF PERSONAL INFORMATION AN ISSUE IN THIS APPEAL?

 

As identified above, one of the issues raised in this appeal by the appellant is that certain information contained in the records is incorrect, and that it ought to be corrected.  The Police take the position that this is not an issue in this appeal.  Although discussed with the parties by the mediator, the issue was not resolved, and the correction issue remained a possible issue following the conclusion of mediation.  I identified this possible issue in the Notice of Inquiry which I sent to the parties.  Both of the parties addressed this issue and, in the circumstances, I have decided to address it as a preliminary issue.

 

Section 36(1) gives an individual a general right of access to his or her own personal information held by an institution.  Section 36(2) gives the individual a right to ask the institution to correct the personal information.  If the institution denies the correction request, the individual may require the institution to attach a statement of disagreement to the information.  Sections 36(2)(a) and (b) read:

 

Every individual who is given access under subsection (1) to personal information is entitled to,

 

(a)        request correction of the personal information where the individual believes there is an error or omission therein;

 

(b)        require that a statement of disagreement be attached to the information reflecting any correction that was requested but not made;

 

In their representations the Police state that the correction issue has been dealt with in the course of a complaint filed by the appellant to the Professional Standards Bureau.  They state:

 

On [an identified date], the requester made a public complaint to the Professional Standards Bureau of the [Police].  In her complaint, she requested a correction of [an identified record] which relates to [incident B].  This correction was made by [an identified staff sergeant with the Professional Standards Bureau] of the Police and was confirmed in correspondence to the requester on [an identified date].  A subsequent letter from the Ontario Civilian Commission on Police Services ... confirms the correction.  There are no further corrections to be made to this record.

 

The Mediator’s Report has also indicated that the requester would like a correction of [another identified record, relating to incident C].   I discussed this issue with the Mediator when I received her report as I was unaware that the requester wished a correction of this particular record.  [The identified staff sergeant’s correspondence referred to above] has also failed to indicate any request for correction of this record.  The Mediator could not provide me with any further information as to the nature of the correction requested.  The [Police] are not aware of any correction request for [the identified record].

 

Attached to the representations of the Police are the two letters referenced in their representations.  The first letter is addressed to the appellant and is from a Staff Sergeant with the Police’s Professional Standards Bureau.  It reviews the three complaints made by the appellant.  In addressing one of the complaints (relating to incident A), the Staff Sergeant states:

 

I appreciate your concern ... However, rather than filing a complaint under Part “V” of the Ontario Police Services Act , the proper course of corrective action would have been through the Municipal Freedom of Information and Protection of Privacy Act.  This legislation allows a party to correct their own personal information ....  I have included a copy of the appropriate form with this letter in the event a similar concern arises in the future.

 

The Staff Sergeant’s letter goes on to identify that, following a review of the record and after discussions with the Records Manager, the Records Manager made the requested change to the record relating to incident A.  The Staff Sergeant’s letter then states that the Staff Sergeant hopes the correction addresses the appellant’s concerns.

 

The Staff Sergeant’s letter also addresses the second complaint made by the appellant, which relates to incident B.  It reviews the complaint, which included questions the appellant had about the process.  The Staff Sergeant addresses a number of the questions, and then advises that, as a result of his review, he had the occurrence reclassified.  He then states “I have included a copy of the amended occurrence summary with this letter”.

 

The Staff Sergeant’s letter also addresses the third complaint made by the appellant, which relates to incident C.  The letter reviews the three areas of concern raised by the appellant, and summarizes them in the form of three questions.  None of these questions relate to a request for a correction of information.

 

In response to the representations of the Police on these issues, the appellant states that at the time she received the severed records in response to her request, she contacted the Police Freedom of Information Coordinator by telephone and identified her concerns regarding the errors in the records and the inadequacy of the decision letter.  She states that she was referred to the officers involved in these incidents and that, following her unsuccessful attempts to resolve these matters, she decided to file a public complaint against the Police, as well as file the appeal with this office which resulted in the opening of this appeal.

 

The appellant proceeds to identify that, in her view, the correction made by the Staff Sergeant to the record relating to incident B is inexact, and that it includes inaccurate, inappropriate and irrelevant material.  She also alleges that certain material included in the record is “based on hearsay”.  The appellant goes on to argue that the request to correct the record relating to incident B was discussed with the mediator and identified as an issue.  Finally, the appellant identifies that she has no knowledge about the procedure with respect to the statement of disagreement, but requests that the Police attach a statement of disagreement reflecting corrections that were requested but not made.

 

Finding

 

In this appeal I must decide whether the issue of the correction of personal information is properly before me.

 

In the circumstances, the request for the correction of personal information was raised in a unique manner.  According to the chronology of events contained in the appellant’s representations, it was during a telephone call with the Police’s Freedom of Information Coordinator that she raised her concern that some information contained in the responsive records was inaccurate.  She also states that she attempted to discuss the issue by telephone with several identified officers, and then chose to file a public complaint regarding the correction issue with the Professional Standards Bureau of the Police.  As noted above, the Police responded to the appellant’s correction requests raised in the appellant’s complaint with the Professional Standards Branch by changing certain information in two records.  As I indicated above, in the response provided to the appellant in the course of addressing the issue in that file, the Police also stated:

 

... rather than filing a complaint under Part “V” of the Ontario Police Services Act , the proper course of corrective action would have been through the Municipal Freedom of Information and Protection of Privacy Act.  This legislation allows a party to correct their own personal information ....  I have included a copy of the appropriate form with this letter in the event a similar concern arises in the future.

 

As set out above, section 36(2) of the Act gives individuals the right to ask an institution to correct personal information.  In this appeal I have not been provided with any information suggesting that the appellant has requested a correction of information under section 36(2) the Act (set out above), nor that she filed a request for correction with the Freedom of Information Office of the Police.  Rather, the appellant identified her concerns regarding the accuracy of certain information in the records with the Staff Sergeant in the course of the processing of her complaint with the Professional Standards Bureau.

 

In the circumstances, I am not satisfied that the issue of the request for correction of information is appropriately before me in this appeal.  Section 39(1) of the Act identifies the circumstances under which a decision of an institution may be appealed.  It reads:

 

A person may appeal any decision of a head under this Act to the Commissioner if,

(a)      the person has made a request for access to a record under subsection 17 (1);

(b)      the person has made a request for access to personal information under subsection 37 (1);

(c)      the person has made a request for correction of personal information under subsection 36 (2); or

(d)     the person is given notice of a request under subsection 21 (1).  [emphasis added]

 

The wording of section 39(1)(c) specifically states that a decision of a head may be appealed under the Act if the person has made a request for correction under subsection 36(2).   Although the appellant states that she referred to the correction issue in the processing of this appeal file, the appellant chose to request the correction of certain information through filing a complaint with the Professional Standards Bureau.  During that process, she was advised of her right to request a correction under the Act, but she has not made any such request to the institution under the Act.  The Police have also specifically identified that, in their view, the correction request relating to incident B was dealt with in the course of the complaint filed by the appellant, and that they are not aware of any correction request relating to incident C. 

 

In the circumstances, because the appellant has not made a request for correction of personal information under section 36(2) of the Act, and no decision under the Act has been made by the Police regarding the correction issue under that section, the issue of the correction of information cannot be reviewed by me as it is not, in fact, before me in this appeal.

 

I note, however, that nothing precludes the appellant from making a request to the Police for correction under section 36(2) of the Act in the future, should she choose to do so.

 

PERSONAL INFORMATION

 

In order to determine which sections of the Act may apply, it is necessary to decide whether the record contains “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,

 

(c)        any identifying number, symbol or other particular assigned to the individual,

 

(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,

 

(f)        correspondence sent to an institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to that correspondence that would reveal the contents of the original correspondence,

 

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

 

(h)        the individual’s name if 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 Police state that the records contain the personal information of individuals other than the appellant, including their names, addresses,  telephone numbers, dates of birth, as well as other information about them.  The Police also identify that the records contain the personal information of the appellant.

 

Following my review of the records, I find that all of the records contain the personal information of the appellant, including her name, address and telephone number (paragraph (d)), the views or opinions of other individuals about her (paragraph (g)), as well as her name along with other personal information relating to her (paragraph (h)).

 

I also find that the records contain the personal information of other identifiable individuals, and that the severed portions of the records contain their names, addresses and telephone numbers (paragraph (d)), their personal views and opinions (paragraph (e)), and their names along with other personal information relating to them (paragraph (h)), including statements they made to the Police. 

 

DISCRETION TO REFUSE ACCESS TO APPELLANT’S OWN PERSONAL INFORMATION/INVASION OF PRIVACY

 

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, including section 38(b).  Section 38(b) introduces a balancing principle that must be applied by institutions where a record contains the personal information of both the requester and another individual.  In this case, the Police must look at the information and weigh the appellant’s right of access to her own personal information against the other individuals’ right to the protection of their privacy.  If the Police determine that release of the information would constitute an unjustified invasion of the personal privacy of others, then section 38(b) gives the Police the discretion to deny access to the appellant’s personal information.

 

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 an individual’s personal privacy.  Section 14(2) provides some criteria for the Police 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; and 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 section 14(2) (John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767). 

 

Representations

 

The Representations of the Police

 

The Police take the position that disclosure of the severed information in the occurrence summaries and reports, as well as the severed portions of the police officers’ notebooks, is presumed to constitute an unjustified invasion of the privacy of other individuals under the presumption in section 14(3)(b) of the Act which reads:

 

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;

 

The Police state:

 

The [Police] attended at each of these incidents as a result of receiving a call for service.  As a result of their investigations, the Police determined that the matters did not warrant the laying of charges.  This does not negate the fact that the investigations commenced as investigations into a possible violation of law.  The personal information in the records was compiled and is identifiable as part of an investigation into a possible violation of the Criminal Code .  Therefore, section 14(3)(b) of [the Act] applies to the personal information at issue ...

 

The appellant’s representations

 

The appellant provides representations in support of her position that the disclosure of the information in the records would not result in an invasion of privacy under section 14(1) of the Act.

 

The appellant begins by stating that section 14(1)(c) applies in the circumstances of this appeal.  That section states:

 

A head shall refuse to disclose personal information to any person other than the individual to whom the information relates except,

 

personal information collected and maintained specifically for the purpose of creating a record available to the general public

 

The appellant takes the position that this section applies because, at the time of each occurrence, the officers never advised her that the information which she supplied to the Police was to remain confidential.  I understand her argument to be that, if she was not advised of the confidentiality of the information, others would also not have been so advised.  The appellant further refers to the fact that some information relating to the complaints was disclosed to her and that, therefore, section 14(1)(c) applies.

 

The appellant also takes issue with the position of the Police that the disclosure of the records is presumed to constitute an unjustified invasion of privacy under section 14(3)(b).  The appellant states that there was no violation of law, and refers to the conclusion in one of the investigations that “no further action be taken”.  The appellant also states that the Police have failed to specify which precise law was being investigated.  Finally, the appellant states that the records were created after the completion of an investigation into a possible violation of law, because they were created in response to her subsequent request for access to the records.  Accordingly, the appellant asserts that the presumption in section 14(3)(b) does not apply.

 

The appellant also takes the position that none of the factors favouring privacy protection in section 14(2) apply to the records at issue.

 

Findings

Furthermore, I reject the appellant’s suggestion that section 14(3)(b) does not apply because the records were created as a result of her request under the Act, by which time the investigation was completed.  Section 14(3)(b) refers to a record which is presumed to constitute an unjustified invasion of privacy as a record that contains personal information which “was compiled and is identifiable as part of an investigation into a possible violation of law”.  The relevant time for the purpose of this presumption is the time at which the personal information was compiled, not the time when a record is photocopied or printed as a result of a request for access.  Accordingly, I find that the disclosure of the personal information contained in the records is presumed to constitute an unjustified invasion of the personal privacy of identifiable individuals under section 14(3)(b) of the Act.

 

As set out above, once a presumption against disclosure has been established, it cannot be rebutted by either one or a combination of the factors set out in section 14(2).  Accordingly, I find that the disclosure of information in the records is presumed to constitute an unjustified invasion of privacy, and that it is exempt from disclosure under section 38(b).

 

The section 38(b) exemption is discretionary and permits the Police to disclose information, despite the fact that it could be withheld.  On appeal, this office may review the Police’s decision in order to determine whether it exercised its discretion and, if so, to determine whether it erred in doing so (Orders PO-2129-F and MO-1629).  The appellant has taken issue with the manner in which the Police exercised their discretion in this appeal.  I will, therefore, review the Police’s exercise of discretion.

 

Exercise of discretion

 

As noted, section 38(b) is a discretionary exemption.  When a discretionary exemption has been claimed, an institution must exercise its discretion in deciding whether or not to disclose the records.  On appeal, the Commissioner may determine whether the institution failed to do so.

 

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 such a 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)].

 

In their representations on the manner in which they exercised their discretion, the Police state that they have followed the principles set out in the Act, and that access to records is one of the mandates of the Police, particularly in requests for one’s own personal information.  The Police state that they consider each access request on a case by case basis.  They then state:

 

The [Police] have taken every effort to provide the requester with as much information as possible without in turn violating the privacy of [others].  ... the disclosure of the remaining information would cause personal distress to the other identifiable individuals.

 

The appellant takes the position that the Police did not exercise their discretion.  One of the arguments put forward by the appellant is that she is aware of some of the information, as she was present when some information was being provided to the Police, or was subsequently advised of it by the Police.  The appellant also provides information to me in her representations regarding her view of the incidents and circumstances surrounding the creation of the records.  In support of her position, the appellant has provided photographs and other evidence supporting her view of what occurred during these incidents.

 

I have carefully reviewed the information provided to me by the appellant, as well as the records remaining at issue in this appeal.  I note that much of the information contained in the records has been provided to the appellant.  The severances made by the Police to the 31 pages of records are relatively brief.  The large majority of them (approximately 30 severances) are simply the names and contact information of identifiable individuals other than the appellant.   There are six other brief severances made to the 31 pages of records which contain more than the names and contact information of identifiable individuals.  These six brief portions of records contain specific statements made to the Police by identifiable individuals.

 

On my review of the information contained in this file, I find no reason to disturb the manner in which the Police exercised their discretion to deny the appellant access to this information.  In fact, I note that the Police have very carefully severed the records, and provided the appellant with as much information as possible without violating the privacy of other individuals.

 

Finally, with respect to the appellant’s position that she is aware of the identities of some of the other individuals, and that she “overhead” some of the conversations that they had with the police officers, I am not satisfied that this is sufficient to find that the Police ought to have disclosed additional information at issue to the appellant in this appeal.

 

Based on all of the circumstances, I am not satisfied that the Police erred in exercising their discretion not to disclose to the appellant the information remaining at issue, and I uphold the decision of the Police.

 

REASONABLE SEARCH

Introduction

As set out above, the appellant takes the position that the Police had a copy of a particular petition.  During mediation, the Police advised that they did not have a copy of this document.  The appellant was not satisfied with the response of the Police, and the issue of the reasonableness of the search undertaken for this particular record is an issue in this appeal.

In appeals involving a claim that responsive records exist, as is the case in this appeal, the issue to be decided is whether the Police have conducted a reasonable search for the records as required by section 17 of the Act.  If I am satisfied that the search carried out was reasonable in the circumstances, the decision of the Police will be upheld.  If I am not satisfied, further searches may be ordered.

A number of previous orders have identified the requirements in reasonable search appeals (see, for example, Orders M-282, P-458, P-535, M-909, PO-1744 and PO-1920).  In Order PO-1744, acting-Adjudicator Mumtaz Jiwan made the following statements with respect to the requirements of reasonable search appeals:

... the Act does not require the [institution] to prove with absolute certainty that records do not exist. The [institution] must, however, provide me with sufficient evidence to show that it has made a reasonable effort to identify and locate responsive records. A reasonable search is one in which an experienced employee expends a reasonable effort to locate records which are reasonably related to the request (Order M-909).

I agree with acting-Adjudicator Jiwan's statements.

Where a requester provides sufficient detail about the records that he/she is seeking and the institution indicates that records or further records do not exist, it is my responsibility to ensure that the institution has made a reasonable search to identify any records that are responsive to the request.  In my view, in order to properly discharge its obligations under the Act, the institution must provide me with sufficient evidence to show that it has made a reasonable effort to identify and locate records responsive to the request.

Although an appellant will rarely be in a position to indicate precisely which records have not been identified in an institution's response, the appellant must, nevertheless, provide a reasonable basis for concluding that such records exist.

Representations

In their representations, the Police identify that the petition referred to by the appellant is referred to in an identified incident report.  They provide the reference to the petition, the relevant portion of which reads “the neighbourhood had at one time obtained a petition ... and officers advised that a petition would do no good ...”.  The representations of the Police, prepared by the Police’s Freedom of Information Coordinator, then state:

 

The requester has insisted that the [Police] collected this petition from the neighbourhood.  I have spoken with the officers involved in this incident and they have confirmed that at NO time did the [Police] receive the petition from the neighbourhood.  It was spoken about in hypothetical terms only in relation to the incident that the officers attended.  I have spoken with [an identified staff sergeant] and he confirms that during [a subsequent identified investigation] he was also advised by the involved officers that the petition was not collected by the officers.  The [Police] do not have the petition from the neighbourhood. 

 

The representations of the Police were shared with the appellant, and the appellant provided representations on this issue in which she provides information regarding who was collecting signatures for the referenced petition, why she believes the petition was circulated, and the impact this petition has had on her.  She also identifies her concern that the Police seem to suggest in their representations that the petition never existed.  Furthermore, in support of her position that the Police have this record, she states that she “strongly believes that the petition existed at the time of the occurrence and that it was circulating at the Police departments including [the Freedom of Information Coordinator’s] records.”

 

Finding

 

In this appeal, the Police state that they checked with the officers who were involved in the investigations as to whether they had ever obtained a copy of the petition, and that these officers confirmed that they had not received a copy of it.  The Police also state that they do not have a copy of the petition in their files.

 

The appellant’s representations focus on her knowledge that the petition existed.  She provides factual information in support of her view that the petition was circulated, and one of her concerns appears to be that the Police suggest that the petition did not exist.

 

As set out above, the issue that I must decide is whether the Police have conducted a reasonable search for the records as required by section 17 of the Act.  If I am satisfied that the search carried out was reasonable in the circumstances, the decision of the Police will be upheld.  If I am not satisfied, further searches may be ordered.

 

I appreciate the appellant’s concerns regarding the petition and the impact it has had on her; however, the issue I must decide is whether the Police have conducted a reasonable search for the petition.  In the circumstances of this appeal, and based on their representations, I am satisfied that the Police conducted a reasonable search for the petition.  Although the appellant indicates that she “strongly believes” that the petition was circulating with the Police, she does not provide further information upon which this “strong belief” is based.  In the circumstances, I am satisfied that the search conducted by the Police was reasonable.

 

As a final matter, I want to reassure the appellant that this finding does not suggest that a petition was never circulated in the neighbourhood.  Based on all of the information provided in this appeal, it appears likely that a petition was circulated.  The issue before me, however, is not whether a petition existed, but whether the searches conducted by the Police for a copy of it were reasonable.  As identified above, I find that the searches were reasonable.

 

ORDER:

 

I uphold the decision of the Police.

 

 

 

 

Original signed by:                                                                              February 27, 2007                                         

Frank DeVries