Access to Information Orders
Decision Information
Police records relating to the investigation into the murder of the appellant's brother. Section 2(1) (definition of 'personal information') - records contain the personal information of the appellant's brother and other individuals. section 14(1) (personal privacy) - partly upheld Ordered disclosure of records pertaining to appellant's brother's murder but not records pertaining to other individuals.
Decision Content
NATURE OF THE APPEAL:
In 2004, the Canadian Resource Centre for Victims of Crime (the Centre) submitted a request to the Hamilton Police Services Board (the Police) under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for access to records relating to a double murder that occurred in 2000. The request was made on behalf of the sister of one of the murder victims. I will refer to the sister as the appellant in this Order.
The Police denied access to the responsive records pursuant to the law enforcement and personal privacy provisions in sections 8 and 14(1) of the Act. The appellant appealed the Police’s decision to this office. I reviewed and upheld the decision by the Police to withhold access to the records in Order MO-1901. In that decision, I concluded that:
Since the publication of the 1999 Annual Report, Commissioner Cavoukian has urged the introduction of amendments to the Act to allow for access to the personal information of deceased persons by close family members to assist them in the healing process. Those proposed amendments have not been promulgated, however. As a result, I must interpret the privacy protection provisions of the Act as they now exist and uphold the decision of the Police to deny access to the records under the mandatory exemption in section 14(1).
On June 22, 2006, Bill 190 received Royal Assent and section 14(4)(c) was added to the Act. This section provides that disclosure of personal information does not constitute an unjustified invasion of personal privacy if it,
discloses personal information about a deceased individual to a spouse or close relative of the deceased individual, and the disclosure is desirable for compassionate reasons.
Shortly after the enactment of section 14(4)(c), the Centre made a second request on behalf of the appellant to the Police under the Act, referring to Bill 190, for the following information relating to the investigation of the murder of the appellant’s brother:
1. Police occurrence report;
2. Notes of officers attending the scene and involved in investigation;
3. Forensic reports;
4. Reports concerning ballistics testing (including but not limited to distance, trajectory, position of the victim relative to offender, how many shots fired, and gunshot residue on victim);
5. Crime scene photos/video;
6. Crown brief;
7. Agreed statement of facts;
8. List of exhibits.
The Police issued a decision granting partial access to the following records:
• Occurrence report
• Lead investigator’s typed notes
• Personal statement of the appellant
• Forensic Officers’ documentation of their duties as they relate to the deceased brother.
The Police advised that a fee of $164.95 was payable for accessing the records. The Police denied access to the withheld portions of the responsive records pursuant to section 38(a) (discretion to refuse requester’s own information), in conjunction with the discretionary law enforcement exemptions in sections 8(1)(c), 8(1)(l), 8(1)(g) and 8(2)(c); and the personal privacy exemption in section 38(b), in conjunction with the presumptions found at sections 14(3)(a) and 14(3)(b) and the factor favouring non-disclosure at section 14(2)(f) of the Act.
In their decision, the Police further advised that they had exercised their discretion in denying access to forensic reports, ballistic test reports and crime scene photos/video on the basis that such records are considered investigative tools. Finally, the Police provided the appellant’s representative with contact information to request from the Ministry of the Attorney General copies of the Crown Brief, an Agreed Statement of Facts and a List of Exhibits that were not in their possession.
The appellant appealed the Police’s decision to this office.
During the mediation process, the appellant indicated that those portions of the records identified by the Police as non-responsive were no longer an issue in this appeal, but that she continued to seek access to records responsive to Items 1-5 of the request. With respect to items 6, 7 and 8 of the request (Crown Brief, Agreed Statement of Facts and List of Exhibits), the appellant advised that those items are no longer at issue in this appeal, as they are the subject of Appeal PA07-46-2, which resulted from a decision made under the provincial Act by the Ministry of the Attorney General.
Also during mediation, the Police provided the mediator and the appellant with a two-page document entitled “Records” and a one-page document entitled “Index of Records”. The documents prepared by the Police identify the records at issue by general categories and claim that all of the responsive records qualify for exemption under section 38(a), in conjunction with sections 8(1)(c), 8(1)(l), 8(1)(g) and 8(2)(c); and section 38(b), in conjunction with the presumptions found at sections 14(3)(a) and 14(3)(b) and the factor favouring non-disclosure at section 14(2)(f). However, the “Index of Records” and “Records” prepared by the Police do not include information that might assist the appellant or this office to appreciate the nature of the records, the specific exemptions relating to specific records or how many pages of records are in each category. On reviewing these two documents, it is not always apparent what exemption is being relied upon.
No further mediation was possible and this appeal was assigned to me for adjudication. I decided to commence the Inquiry by sending a Notice of Inquiry to the Police. I received representations from the Police, portions of which were shared with the appellant, along with a copy of the Notice of Inquiry. I did not disclose portions of the Police’s submissions to the appellant due to concerns which I had about their confidentiality. The appellant also provided me with representations, which were shared with the Police. I then invited the Police to make further submissions by way of reply and they did so.
After reviewing the records, I determined that, pursuant to section 41(13) of the Act, it was necessary for me to seek the views of several other individuals whose personal information appears to be contained in the records. I have not received any response to the Notice of Inquiry provided to these individuals.
RECORDS:
The records remaining at issue consist of the undisclosed portions of the records and of the withheld records responsive to Items 1, 2, 3, 4 and 5 of the request. The records are described in greater detail in the Index of Records which I prepared and attached to this Order.
DISCUSSION:
PERSONAL INFORMATION
The records or portions of records that remain at issue relate to the police investigation of the murder of the appellant’s brother, who was killed along with another individual. The records consist of a large number of police officer notebook entries, witness statements in written and audio or video format, occurrence reports prepared by various police officers, photographs, audio and videotapes taken at the scene of the murder and various forensic evidence compiled by the Police during the course of their investigation. The appellant has been given access to some of the records, in whole or in part, which contain references to herself and her brother and the circumstances surrounding his death.
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. 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.)].
I have reviewed the information contained in the records that remain at issue. I find that the majority of the records contain the personal information of identifiable individuals other than the appellant or her deceased brother. I find that all of the information contained in the records that relates to the appellant has now been disclosed to her. However, records containing personal information that relates to her brother and to other identifiable individuals, particularly the other murder victim, has not been disclosed to the appellant and remains at issue in this appeal. This personal information includes descriptions of the medical condition of the other victim and the criminal and employment histories of this person and a number of other identifiable individuals.
I conclude that a relatively small number of the records, or parts of records, remaining at issue contain a combination of the personal information of the appellant’s deceased brother and that of a number of other identifiable individuals. During the course of their investigation, the Police interviewed or obtained information from a large number of individuals. The majority of these records do not, however, contain the personal information of the appellant’s brother. Because of the nature of the investigation undertaken by the Police and the particular circumstances surrounding the murder, much of the investigation was focused on the other deceased individual and his relationships with those who provided information to the Police. The events that gave rise to the murders involved the inter-relationship between the other deceased person and the individual convicted of the murders and a number of other persons. The appellant’s brother’s involvement in these relationships and history was not significant. As a result, I conclude that the vast majority of the records compiled during this investigation focus entirely on various aspects of the other murder victim’s life, and not on the appellant’s brother.
In addition, as I found above that none of the remaining records at issue contain the personal information of the appellant, my analysis of the application of the personal privacy exemption claimed will involve a review of section 14, contained in Part 1 of the Act.
PERSONAL PRIVACY
Having found that the records do not include the personal information of the appellant, I must now consider whether the information at issue in the records is exempt under section 14(1). The Police have cited the consideration listed in section 14(2)(f) (the information is highly sensitive), and the presumptions in sections 14(3)(a) (the information relates to medical evaluation or treatment) and 14(3)(b) (the information was compiled as part of an investigation into a possible violation of law) in support of their view that disclosure of this information would constitute an unjustified invasion of personal privacy.
Where a requester seeks personal information of another individual, section 14(1) prohibits an institution from releasing this information unless one of the exceptions in paragraphs (a) to (f) of section 14(1) applies. If the information fits within any of paragraphs (a) to (f) of section 14(1), it is not exempt from disclosure under section 14. The section 14(1)(a) to (e) exceptions are relatively straightforward. The section 14(1)(f) exception is more complex, and requires a consideration of additional parts of section 14. This exception applies in situations where it can be demonstrated that disclosure of personal information would not result in an unjustified invasion of personal privacy.
Section 14(2) lists criteria for the institution to consider in making a determination as to whether disclosure of personal information would result in an unjustified invasion of the personal privacy of the individual to whom the information relates. Section 14(3) lists the types of information the disclosure of which is presumed to constitute an unjustified invasion of personal privacy.
Section 14(4) refers to certain types of information whose disclosure does not constitute an unjustified invasion of personal privacy. Of relevance to this appeal, this section was recently amended by the addition of section 14(4)(c) which states:
Despite subsection (3), a disclosure does not constitute an unjustified invasion of personal privacy if it,
discloses personal information about a deceased individual to the spouse or a close relative of the deceased individual, and the head is satisfied that, in the circumstances, the disclosure is desirable for compassionate reasons.
If none of the presumptions in section 14(3) apply, the institution must consider the application of the factors listed in section 14(2), as well as other considerations that are relevant in the circumstances of the case. If a presumption listed in section 14(3) has been established, it cannot be rebutted by either one or a combination of the factors set out in section 14(2).
A presumption can, however, be overcome if the personal information is found to fall under section 14(4) of the Act or if a finding is made under section 16 of the Act that a compelling public interest exists in the disclosure of the record that clearly outweighs the purpose of the section 14 exemption [John Doe v. Ontario (Information and Privacy Commissioner)(1993), 13 O.R. (3d) 767]. Therefore, section 14(4) creates an exception to the exemption in section 14(1).
In Order MO-1901, which dealt with the same records as those at issue in the present appeal, I found that the presumption in section 14(3)(b) applied to them and I maintain that position with respect to these records again.
Section 14(4)(c)
Representations of the parties
The principal issue in this appeal is whether the exception in section 14(4)(c) permits the further disclosure to the appellant of her brother’s personal information that is contained in the responsive records, notwithstanding that it may be co-mingled with the personal information of other individuals. Based on the wording of this provision, a finding that the exception in 14(4)(c) applies to some or all of this personal information means that disclosure of that information would not be an unjustified invasion of personal privacy. Accordingly, where this provision applies, the information is not exempt under section 14(1) [see Orders MO-2171 and MO-2165].
The Police submit that section 14(4)(c) does not apply because they “do not believe that the appellant is seeking release of these records solely for ‘compassionate reasons’.” They argue that the appellant has now received access to all of her own personal information contained in the records, as well as that of her brother, “with the exception of parts that related to other affected parties and portions of the record that are identified as investigative.”
The appellant indicates that she is seeking access to the forensic reports, ballistic test reports and crime scene photographs and videotapes. She states that she is a close relative of the deceased person and that in order to “heal and move on” and to “have some closure with regard to her brother’s murder”, she “needs to know all of the details surrounding his death.” The appellant’s representative goes on to add that:
The need for information can become secondary to the denial of information. If the information has been provided, it may or may not be of any assistance to the victim. But if it is denied, victims can, ‘become stuck in the quest to know. . .’ and ‘might spend a great deal of time researching the crime, trying to understand. . .’. By denying the information, the victim’s ability to heal has slowed down, possibly halted.
In its reply submissions, the Police maintain their position that the appellant has received a great deal of information as a result of certain disclosures that were made as a result of these requests and at the time of the murder trial by the Crown Attorney. The Police maintain that this degree of disclosure is sufficient to enable the appellant to completely understand the circumstances surrounding her brother’s murder.
Analysis and findings
In Order MO-2237, Assistant Commissioner Brian Beamish applied the exception in section 14(4)(c) to several records which also contained the intermingled personal information of several identifiable individuals, including the deceased daughter of the appellant in that case. He made the following comments on the difficulties in applying section 14(4)(c) in these circumstances:
I have found that parts of records 5, 6 and 11 consist of the personal information of the appellant’s daughter. Record 11 also contains the affected party’s image, voice and mannerisms, and records 5, 6 and 11 contain information about the affected party’s activities where these also involve the appellant’s daughter. This information is inextricably intertwined in a way that cannot be fully resolved by severing, and accordingly, these records raise one of the more difficult aspects of applying section 14(4)(c), namely the question of how to treat information that is clearly the personal information of the deceased individual, but, at the same time, is also the personal information of another individual or individuals.
The first question to address here is whether the reference to “personal information about a deceased individual” can include information that also qualifies as that of another individual. In my view, this question should be answered in the affirmative. The circumstances of an individual’s death, particularly one that is followed by a police or coroner’s investigation, are likely to involve discussions with other individuals that will entail, to a greater or lesser extent, the collection and recording of those individuals’ personal information. In my view, an interpretation of this section that excludes any information of a deceased individual on the basis that it also qualifies as the personal information of another individual would be inconsistent with the definition of “personal information”, set out above, since the information would clearly qualify as recorded information “about” the deceased individual. It would also frustrate the obvious legislative intent behind section 14(4)(c), of assisting relatives in coming to terms with the death of a loved one.
In my view, this approach is borne out by the legislative history of section 14(4)(c) (and section 21(4)(d) of the Freedom of Information and Protection of Privacy Act, the equivalent section in that statute). Prior to the enactment of this provision, denial of access to information to family members regarding the circumstances of their loved ones’ death was often forced upon institutions by the operation of section 14(3). Examples of the kind of information previously withheld include records such as those at issue here and include police occurrence reports, ambulance call reports and 911 call reports [see Orders PO-2473, PO-1757]. This information was previously determined to be exempt from disclosure as an unjustified invasion of the privacy of the deceased because the presumptions of unjustified invasion in section 14(3)(a) (relates to medical history) and/or 14(3)(b) (compiled and identifiable as part of an investigation into a possible violation of law) applied to much of the personal information in these types of records.
After reviewing the history behind the enactment of section 14(4)(c), the Assistant Commissioner went on to comment on its application as follows:
Accordingly, in my view, it is consistent with both the definition of “personal information” in section 2(1) and the legislative purpose behind this section to interpret “personal information about a deceased individual” as including not only personal information solely relating to the deceased, but also information that qualifies as the personal information of not only the deceased, but another individual or individuals as well.
The conclusion that personal information about a deceased individual can include information about other individuals, raises the further question of how the information of those other individuals should be assessed in deciding what to disclose under section 14(4)(c). In my view, assistance is provided in that regard by the legislative text, which permits disclosure that is “in the circumstances, desirable for compassionate reasons.”
Where this is the case, the “circumstances” to be considered would, in my view, include the fact that the personal information of the deceased is also the personal information of another individual or individuals. The factors and circumstances referred to in section 14(2) may provide assistance in this regard, but the overall circumstances must be considered and weighed in any application of section 14(4)(c).
As well, the fact that the protection of personal privacy is one of the Act’s purposes, articulated in section 1(b), must be considered in assessing whether to disclose information that, in addition to being personal information of the deceased, also qualifies as the personal information of another individual or individuals.
Another circumstance to consider is the privacy of the deceased individual. In this regard, it is noteworthy that section 2(2) of the Act provides that information about deceased individuals only ceases to be “personal information” after they have been dead for more than thirty years.
To assist in the determination of the applicability of this provision, Assistant Commissioner Beamish articulated the following three-part test to be applied when evaluating whether the exception in section 14(4)(c) applies:
In my opinion, the application of section 14(4)(c) requires a consideration of the following questions, all of which must be answered in the affirmative in order for the section to apply:
1. Do the records contain the personal information of a deceased individual?
2. Is the requester a spouse or “close relative” of the deceased individual?
3. Is disclosure of the personal information of the deceased individual desirable for compassionate reasons, in the circumstances of the request?
I have found above that some of the records remaining at issue contain the personal information of the appellant’s brother and that this information is comingled with that of a number of other identifiable individuals. A large number of the responsive records do not, however, refer to or relate to the appellant’s brother but rather concern only the other murder victim. The answer to the first question posed above is, accordingly, yes with respect only to that relatively small number of records which include the appellant’s brother’s personal information.
Section 2(1) of the Act defines the term “close relative” and includes reference to a sister, which means that the appellant satisfies the requirement of the second part of the test set out above.
In Order MO-2237, Assistant Commissioner Beamish elaborated on the definition of the term “compassionate” which is contained in the third part of the test under section 14(4)(c), pointing out that:
As is suggested by the Police and the appellant in the representations referred to above, section 14(4)(c) raises an issue about the interpretation of the words “desirable for compassionate reasons”. The appellant refers to the Webster’s Online dictionary definition of “compassion.” The Concise Oxford Dictionary, Eighth Edition, defines “compassionate” as follows: “adj. sympathetic, pitying.” Compassion is defined in the Concise Oxford Dictionary, Eighth Edition, as follows: “n. pity inclining one to help or be merciful.”
I accept these definitions as evidence of the plain and ordinary meaning of the word “compassionate” and adopt it for the purposes of this appeal.
As discussed above, I have concluded that by using the words “in the circumstances” the Legislature intended that a broad and all encompassing approach be taken to the consideration by this office of whether or not disclosure is “desirable for compassionate reasons.” In my view, by enacting this amendment to the Act, the Legislature intended to address an identified gap in the access to information legislation and increase the amount of information being provided to bereaved family members. It is recognition that, for surviving family members, greater knowledge of the circumstances of their loved one’s death is by its very nature compassionate.
I adopt the reasoning of the Assistant Commissioner for the purposes of the present appeal and find that the disclosure of the appellant’s brother’s personal information contained in the records to the appellant will assist her in better understanding the circumstances surrounding her brother’s death and that this disclosure is, accordingly, in these circumstances, “desirable for compassionate reasons.” The difficulty in this case lies in drawing the line between the protection of the personal privacy of the many other identifiable individuals that are referred to in the records, particularly the other individual who was murdered with the appellant’s brother, and the desire on the part of the appellant to obtain greater knowledge of the circumstances surrounding her brother’s death.
In my view, the disclosure to the appellant of those records which contain information that directly speaks to the events surrounding the murder of the appellant’s brother is desirable for compassionate reasons. The appellant is interested in obtaining access to any information about the circumstances surrounding the last few days of her brother’s life that may be included in the records and is particularly interested in obtaining information which describes his last few hours. In my view, the disclosure of this information to her is particularly desirable for compassionate reasons, as it may assist her in better understanding the sequence of events leading to his death. Again, because the records include a great deal of personal information relating to a number of other identifiable individuals, particularly the individual who was murdered with the appellant’s brother, I find that the exception in section 14(4)(c) applies only to the information that pertains to the activities of both the appellant’s brother and the other murder victim in the days leading up to these events. In my view, the disclosure to the appellant of the personal information that pertains only to the other deceased person and which describes his interactions with others is not desirable for compassionate reasons, as contemplated by section 14(4)(c).
Accordingly, I find that the exception in section 14(4)(c) applies to certain records or parts of records, as their disclosure would not result in an unjustified invasion of personal privacy, within the meaning of section 14(1)(f). Accordingly, the records whose disclosure is desirable for compassionate reasons which contain the personal information of the appellant’s brother are not exempt under section 14(1), and any such records which also contain the personal information of other identifiable individuals are not exempt under section 14(1).
With this order, I have provided the Police with an Index setting out those records, or parts of records, which ought to be disclosed to the appellant for compassionate reasons. With respect to those records which are not to be disclosed, I find them to be exempt under section 14(1) because the presumption in section 14(3)(b) applies to them and it has not been rebutted by the operation of the public interest override provision in section 16 or some other provision in section 14(4).
LAW ENFORCEMENT
The Police have claimed the application of the discretionary law enforcement exemptions in sections 8(1)(c), (l) and (g), as well as section 8(2)(c) to the records which I have found are not subject to exemption under section 14(1). I will review the application of the law enforcement exemptions only to those records which I have found are not exempt under section 14(1) above. These sections state:
(1) A head may refuse to disclose a record if the disclosure could reasonably be expected to,
(c) reveal investigative techniques and procedures currently in use or likely to be used in law enforcement;
(g) interfere with the gathering of or reveal law enforcement intelligence information respecting organizations or persons;
(l) facilitate the commission of an unlawful act or hamper the control of crime.
(2) A head may refuse to disclose a record,
(c) that is a law enforcement record if the disclosure could reasonably be expected to expose the author of the record or any person who has been quoted or paraphrased in the record to civil liability;
In support of these claims, the Police simply state as follows:
The exemptions of sections 8(1)(c), 8(1)(g), 8(1)(l) and 8(2)(c) provide the right of law enforcement agencies to protect their investigative techniques, intelligence gathering information and confidential criminal record files held by a law enforcement agency that are used for investigative purposes only and not for disclosure to the public. [The Police] feel even more strongly when defending this position particularly as it relates to a homicide investigation/major case file rather than a law enforcement general occurrence/report. [emphasis by the Police]
The Police do not, however, go on to link the specific information contained in the records which I found do not qualify for exemption under section 14(1) to any of the exemptions claimed under section 8.
Except in the case of section 8(1)(e), where section 8 uses the words “could reasonably be expected to”, the institution 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. Ontario (Information and Privacy Commissioner), [2003] O.J. No. 2182 (Div. Ct.), Ontario (Workers’ Compensation Board) v. Ontario (Assistant Information and Privacy Commissioner) (1998), 41 O.R. (3d) 464 (C.A.)].
In my view, the Police have failed to provide me with the kind of “detailed and convincing” evidence required to establish that the disclosure of the information contained in the remaining records and parts of records could reasonably be expected to give rise to the harms contemplated by sections 8(1)(c), (g) or (l) or section 8(2)(c). Neither do the records themselves lead to a conclusion that the harms contemplated under these exemptions could reasonably be expected to follow their disclosure. As a result, I find that the records do not qualify for exemption under these sections.
ORDER:
1. I order the Police to disclose to the appellant those records or parts of records which I have identified as not exempt in the Index of Records which accompanies this order by providing her with copies by June 27, 2008 but not before June 23, 2008.
2. I uphold the decision of the Police to deny access to the remaining records, or parts of records.
3. In order to verify compliance with terms of this order, I reserve the right to require the Police to provide me with copies of the records that are disclosed to the appellant.
Original signed by: May 22, 2008