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

During the course of discussions with the mediator at the mediation stage of the appeal process, the appellant indicated that he believed there should be additional records responsive to his request, aside from the eight pages identified by the Police in their decision letter.  In particular, the appellant asserted that there should have been emails or other types of documents submitted by the complainant to the Police as evidence.  During mediation the Police conducted a second search for records, but found no additional records.  The Police subsequently provided the mediator with a memo from the investigating officer confirming that he seized no documents or other forms of evidence from the complainant.  The appellant advised the mediator that he would be satisfied with the Police’s search efforts upon receiving a copy of the memo.  I understand that a copy of the memo was subsequently provided to the appellant and, accordingly, the existence of additional records is no longer at issue in this appeal.

With respect to the records retention issue and the appellant’s interest in having the records at issue destroyed, the Police provided the appellant with a copy of their records retention schedule, issued pursuant to its records retention by-law.  The appellant, subsequently, advised the mediator that he does not wish to pursue these issues any further in this appeal.  Accordingly, the records retention and destruction of records issues are no longer at issue in this appeal.

The appellant also confirmed that he does not wish to pursue access to any portions of the records that were severed as non-responsive.  Accordingly, those portions of the records marked non-responsive are no longer at issue.

The appellant further advised the mediator that he wishes to pursue access to the portions of the records that were severed pursuant to section 14 of the Act.  The mediator also raised the application of the discretionary personal privacy exemption in section 38(b) to the records at issue, which the Police agreed was relevant.  Accordingly, the application of section 38(b), read with section 14, is at issue in this appeal.

As further mediation was not possible, the matter was referred to the adjudication stage of the appeal process for an inquiry. 

I commenced my inquiry by issuing a Notice of Inquiry and seeking representations from the Police.  The Police submitted representations in response and agreed to share them in their entirety with the appellant.

I then sought representations from the appellant and included with my Notice of Inquiry a severed copy of the Police’s representations.  Despite the Police’s willingness to share their representations in their entirety, I decided to sever a portion of them due to confidentiality concerns.  The appellant submitted representations in response.

RECORDS:

There are three records at issue, consisting of the severed portions of two incident reports (Records 1 and 2) and a police officer’s notes (Record 3).

DISCUSSION:

PERSONAL INFORMATION

General principles

In order to determine which section 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,

…

(d)       the address, telephone number, fingerprints or blood type of the 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, the information must be about the individual in a personal capacity.  As a general rule, information associated with an individual in a professional, official or business capacity will not be considered to be “about” the individual [Orders P-257, P-427, P-1412, P-1621, R-980015, MO-1550-F, PO-2225].

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.)].

Representations

The Police submit that the records at issue contain the personal information of the appellant, the complainant and witnesses.  The Police’s representations provide details regarding the nature of this information in relation to the meaning of the definition of personal information set out above. 

The appellant does not address this issue directly.   He simply states that he knows the identities of the complainant and the witnesses.

Analysis and findings

On my review of the three records at issue, I find that they contain the personal information of the appellant and two other identifiable individuals, namely the complainant and one witness.  The personal information regarding the appellant includes his name, sex, date of birth, home telephone number and address, the views and opinions of other individuals about him, and other personal information relating to him.  The personal information pertaining to the complainant includes her name, sex, date of birth, home telephone number and address, her views and opinions, and other personal information relating to her.  The personal information pertaining to the witness includes his name, sex, date of birth, home telephone number and address, and his relationship with the complainant.

There are two other individuals named in Record 3.  In addition to their names, the information about these individuals appears, on the face of this record, to concern their respective professional work relationships with the appellant and the complainant.  In addition, in the case of one of these individuals the information about her includes a business telephone number. In my view, based on the evidence before me, all of the information regarding these two individuals is associated with them in a professional, official or business capacity.  Therefore, I find that it is not information that is “about” an individual within the meaning of the definition of personal information in section 2(1) of the Act.  Accordingly, I will order its release.

PERSONAL PRIVACY

Section 38(b)/14 exemption

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 exemptions from this right.  The Police take the position that the undisclosed portions of the records are exempt under the discretionary exemption in section 38(b).  Under section 38(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 38(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 their own personal information against the other individual’s right to protection of their privacy.

Sections 14(1) to (4) provide guidance in determining whether the “unjustified invasion of personal privacy” threshold under section 38(b) is met.  If the presumptions contained in paragraphs (a) to (h) of section 14(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 14(4), if or the “public interest override” in section 16 applies [John Doe v. Ontario (Information and Privacy Commissioner) (1993), 13 O.R. (3d) 767].  In this case the Police have raised the application of section 14(3)(b).   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;

Section 14(3)(b) may still apply even if no criminal proceedings were commenced against any individuals.  The presumption only requires that there be an investigation into a possible violation of law [Order P-242].

Representations

The Police rely on the presumption in section 14(3)(b) to deny access to the severed portions of the records.

The Police state the records at issue were compiled and are identifiable as part of an investigation into a possible violation of law, specifically an allegation of harassment under section 264  of the Criminal Code .   The Police state that the records clearly relate to the investigation undertaken by a police officer into an allegation of criminal harassment in the circumstances of this case.

In response, the appellant states that although the information at issue was obtained as part of an investigation into a possible violation of law, he understands that the police investigation is now closed.  He states that it has been two years since the alleged event.  He states that the complainant need not worry about her safety or an invasion of her privacy.  He simply wants to know what concerns caused the complainant to take the drastic step of contacting the Police so that he can learn from the experience. 

Analysis and findings

With the exception of a small portion of information relating to two individuals in Record 3, I found above that the records contain the personal information of the appellant and two other identifiable individuals.  In addition, based on my review of their contents, I conclude that these records were compiled as part of an investigation into a possible violation of law, specifically allegations of criminal harassment under the Criminal Code .  Accordingly, I find that the section 14(3)(b) presumption applies to the records.

Having found that the section 14(3)(b) presumption applies to the personal information in those records, I am not at liberty to consider other factors in support of the disclosure of these records, aside from the possible application of the exceptions in section 14(4) or the section 16 “public interest override”. 

I have considered the application of the exceptions contained in section 14(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 16 of the Act was not raised, and I find that it has no application in the circumstances of this appeal.

Accordingly, as a result of the section 14(3)(b) presumption, I find that the disclosure of the personal information in these records would result in an unjustified invasion of the personal privacy of individuals other than the appellant.  Therefore, this information is exempt under section 38(b).

EXERCISE OF DISCRETION

The section 38(b) exemption is discretionary, and permits 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 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 Police submit that they have attempted, in a manner consistent with the purposes of the Act, to release as much information as possible to the appellant without adversely affecting the privacy interests of the other involved individuals.  However, the Police view this incident as a sensitive personal matter with the severed portions of the records containing sensitive personal information concerning the complainant and these other involved individuals.   The Police state that the records depict a relationship between the appellant and the complainant that they characterize as “unfriendly”.  Under the circumstances, the Police submit that the complainant would be unlikely to consent to the release of those portions of the records that contain her personal information.  In addition, the Police state there is no public interest in these records and that their release would not shed light on or increase the public’s confidence in the Police’s operations.

The appellant does not directly address this issue in his representations.  However, the appellant has provided information that is relevant to this discussion.  He indicates that he is anxious to gain access to the severed information so that he can gain a better understanding of what motivated the complainant to go to the Police and to learn from the experience.  As two years have passed since the incident and the ensuing investigation, he feels that enough time has elapsed to allow for the release of the information.

On my review of the parties’ representations, I am satisfied that the Police properly exercised their discretion, taking into account relevant considerations and not taking into account irrelevant considerations.  While I acknowledge the appellant’s views, I am satisfied that in the circumstances of this case, involving a highly sensitive matter between the appellant and the complainant,  the Police properly exercised their discretion by denying access to information that I have found exempt under section 38(b).  Accordingly, I uphold the Police’s exercise of discretion.

SEVERANCE

Section 4(2) of the Act obliges institutions to disclose as much of any responsive record as can reasonably be released without disclosing material that is exempt. 

The key question raised by section 4(2) is one of reasonableness.  Where a record contains exempt information, section 4(2) requires a head to disclose as much of the record as can reasonably be severed without disclosing the exempt information.

The parties did not provide representations on the severance issue.

With the exception of the information in Record 3 concerning the two individuals that I have found does not qualify as personal information and, accordingly, will order released, I am satisfied with the Police’s approach to the severing exercise in this case.

ORDER:

1.         I order the Police to disclose Record 3 in part in accordance with the highlighted version of this record included with the Police copy of this order, by July 24, 2008 but not before July 18, 2008.  To be clear, the Police must not disclose the highlighted portions of this record.

2.         In order to verify compliance, I order the Police to provide me with a copy of Record 2, as ordered disclosed pursuant to Provision 1 of this order.

Original signed by:                                                                        June 18, 2008                                         

Bernard Morrow