The requester (now the appellant) appealed that decision to this office.

After conducting an inquiry into the application of sections 52(3)1 and 52(3)3, I issued Order MO-2086, in which I found that sections 52(3)1 and 52(3)3 do not apply, and concluded that the responsive records are subject to the access provisions of the Act.  Accordingly, I ordered the Police to issue a decision letter to the appellant in conformity with sections 19 and 22 of the Act.

The Police issued a new decision letter to the appellant in which they denied access to the records in their entirety.  In doing so, they claimed the application of section 38(a) (discretion to refuse requester’s own information), read in conjunction with the law enforcement exemptions in sections 8(1)(e) (life or physical safety), 8(1)(l) (commission of an unlawful act or control of crime) and 8(2)(a) (law enforcement report), and section 38(b), read in conjunction with  section 14(1) (personal privacy).  In support of their section 38(b)/14 exemption claim, the Police raised the application of the presumption in section 14(3)(b) (investigation into violation of law) and the factors in sections 14(2)(e) (pecuniary or other harm), 14(2)(f) (highly sensitive) and 14(2)(h) (supplied in confidence) of the Act.

The appellant appealed the new decision to our office.

The file was then transferred to the to adjudication stage for an inquiry.

I commenced my inquiry by issuing a Notice of Inquiry and first seeking representations from the Police.  The Police submitted representations in response and agreed to share the non-confidential portions of them 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.  I did not disclose portions of the Police’s representations due to my concerns about their confidentiality. 

The appellant submitted representations, which he agreed to share with the Police in their entirety.  I then shared the appellant’s submissions in their entirety with the Police and sought reply representations from them.  The Police chose to not submit reply representations. 

RECORDS:

There are seventeen records at issue, all of which have been withheld in full.  They are described in the Index of Records (the Index) that I prepared, which is attached as Appendix A to this order.  

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,

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

…

(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 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 state the records at issue contain the personal information of a number of individuals, including that of the appellant.  The Police submit that the records “include names, addresses and telephone numbers of affected individuals, along with other personal information.”

The appellant does not provide representations on this issue.

Analysis and findings

On my review of the records, I find that Records 1, 2, 4, 5, 6, 8, 10, 11, 12, 13, 14, 15, 16 and 17 contain the personal information of the appellant and several other identifiable individuals (the affected parties).  The personal information regarding the appellant includes his name, sex, date of birth and address, his personal views and opinions, his opinions and views about another identifiable individual, and other personal information relating himself.  The personal information pertaining to the affected parties includes their names, sex, addresses and telephone numbers, their personal views and opinions and other personal information relating to them.

I also note that some of these records contain information regarding various named police officers.  In my view, based on the evidence before me, this information is associated with these individuals in a professional, official or business capacity.  Accordingly, 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.

Having found that the records contain the personal information of the appellant and other individuals, I will now consider the application of the sections 38(a) and 38(b) exemptions to the records at issue.  I begin by looking at the application of section 38(b), read with section 14(1). 

With regard to Records 3, 7, and 9, I find that these records only contain the personal information of the appellant.  The exemption in section 38(b) applies only in circumstances in which the records at issue contain the personal information of both the requester and other individuals.  As these records only contain the appellant’s personal information, I find that section 38(b) cannot apply to them.  Accordingly, I will only consider the law enforcement exemption in section 38(a), read with sections 8(1)(e) and (l) and 8(2)(a), to these records.

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 his or her 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 sections 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 records.  The Police state the records were compiled as part of a police investigation into a possible violation of law.  The Police submit that they were responding to a complaint and that the information in the records, including personal information provided by the affected parties, was acquired during the course of their investigation.  The Police also raise the application of the factor in section 14(2)(f) in support of their section 38(b) claim, stating that “the name of an individual appearing on a police report implies sensitivity and dictates privacy…” 

The appellant’s representations do not specifically address the application of the section 38(b) exemption, or the operation of the section 14(3)(b) presumption.  However, the appellant does appeal for disclosure of the information at issue on the basis that he is the primary party in this matter.  He indicates that he requires the records in order to determine whether there are any discrepancies and/or errors of fact in the records and, if so, whether they would merit a correction request.

Analysis and findings

With the exception of Records 3 and 7, I found above that all of the records contain the personal information of both the appellant and the affected parties.  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 Records 1, 2, 4, 5, 6, 8, 10, 11, 12, 13, 14, 15, 16 and 17, 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 (with the exception of Records 3 and 7) 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), subject to the application of the absurd result principle.

I will now examine the application of the absurd result principle to the circumstances of this case.  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.”

The absurd result principle has been applied where, for example:

• the requester sought access to his or her own witness statement [Orders M-444, M-451]

• the requester was present when the information was provided to the institution [Orders M-444, P-1414]

• the information is clearly within the requester’s knowledge [Orders MO-1196, PO-1679, MO-1755]

In Order PO-2498, I found that applying the section 38(b) exemption to a video statement that was provided by the requester in that case to the OPP during the course of a police investigation would lead to an absurd result.  The basis for reaching that conclusion in that case was that the statement had been provided by the requester to the OPP. 

Turning to this case, I find that applying the section 38(b) exemption to the information contained in Record 4 would lead to an absurd result.  Record 4 is comprised of correspondence that was delivered by the appellant to the Police.  It consists of the appellant’s fax cover page and a two-page letter from the appellant to a named detective sergeant with the Police.  Although this record contains the personal information of both the appellant and an affected party, as it was prepared and provided by the appellant to the Police, I am satisfied that disclosing it to the appellant would not constitute an unjustified invasion of personal privacy due to the application of the absurd result principle. 

In addition, I find that the absurd result principle also applies to a portion of Record 14.  Record 14 is a one-page follow-up report that was prepared by the Police with regard to an affected party’s harassment complaint against the appellant. It contains both the appellant’s and an affected party’s personal information.  While this record was clearly created during the course of an investigation into a violation of law, a portion of it contains a statement that was read to the appellant by a named police officer.  I am satisfied that this portion of the record consists of information that is clearly within the appellant’s knowledge.  Therefore, I find that disclosing this information to the appellant would not constitute an unjustified invasion of personal privacy due to the application of the absurd result principle. 

I acknowledge that the Police have also raised the factor in section 14(2)(f) to bolster their position on the non-disclosure of the information in the records, including Records 4 and 14.  However, having already concluded that Record 4 in its entirety and the statement in Record 14 are known to the appellant, there is no compelling evidence before me that this information is highly sensitive.  Accordingly, I see no basis for applying the factor in section 14(2)(f), or any other factor in section 14(2), to overcome the application of the absurd result principle in the circumstances of this case.

Therefore, subject to the application of section 38(a), read with sections 8(1)(e) and (l) and 8(2)(a) to this information, I will order the disclosure of Record 4 in its entirety and Record 14 in part. 

DISCRETION TO REFUSE REQUESTER’S OWN INFORMATION/LAW ENFORCEMENT

Introduction

Section 36(1) 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.

Under section 38(a), an institution has the discretion to deny an individual access to their own personal information where the exemptions in sections 6, 7, 8, 8.1, 8.2, 9, 10, 11, 12, 13 or 15 would apply to the disclosure of that information.

As stated above, the Police rely on section 38(a), read in conjunction with the law enforcement exemptions in sections 8(1)(e) and (l) and 8(2)(a) of the Act.

I will now consider whether section 38(a), read with these law enforcement exemptions applies to Records 3, 4 and 7 in their entirety and to Record 14 in part.

The applicable paragraphs of sections 8(1) and (2) state:

(1) A head may refuse to disclose a record if the disclosure could reasonably be expected to,

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

…

(l)          facilitate the commission of an unlawful act or hamper the control of crime.

(2) A head may refuse to disclose a record,

(a)         that is a report prepared in the course of law enforcement, inspections or investigations by an agency which has the function of enforcing and regulating compliance with a law;

The term “law enforcement” is used in several parts of section 8, and is defined in section 2(1) as follows:

“law enforcement” means,

(a)        policing,

(b)        investigations or inspections that lead or could lead to proceedings in a court or tribunal if a penalty or sanction could be imposed in those proceedings, and

(c)                the conduct of proceedings referred to in clause (b)

The term “law enforcement” has been found to apply in circumstances involving a police investigation into a possible violation of the Criminal Code  [Orders M-202,  PO-2085]

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.)].

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 the case of section 8(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 8 are self-evident from the record or that a continuing law enforcement matter constitutes a per se fulfillment of the requirements of the exemption [Order PO-2040; Ontario (Attorney General) v. Fineberg].

Section 8(1)(e):  life or physical safety

The Police were invited to provide representations regarding how the disclosure of the records at issue in this appeal could reasonably be expected to endanger the life or physical safety of a law enforcement officer or any other person.  While the Police made representations that peripherally address this issue, which I am not at liberty to disclose owing to confidentiality concerns, in my view, they have not provided detailed and convincing evidence to establish a reasonable basis for believing that endangerment will result from disclosure of Records 3, 4, 7 and 9 and the remaining portions of Record 14.  Record 3 is a letter from the Police to the appellant’s employer, the contents of which is administrative in nature.  As described above, Record 4 is a piece of correspondence authored by the appellant.  Record 7 is an occurrence report that confirms non-controversial information that is known to the appellant.   Record 9 is also an occurrence report, containing information that is known to the appellant.  Finally, as described above, the portion of Record 14 that is at issue comprises a statement that was read to the appellant and is, therefore, within his knowledge. 

In conclusion, on my review of the evidence before me, I find that disclosure of the information at issue in Records 3, 4, 7, 9 and 14 could not reasonably be expected to endanger the life or physical safety of a law enforcement officer or any other person.  Accordingly, I find that the information at issue in these records does not qualify for exemption under section 38(a), read with section 8(1)(e).

Section 8(1)(l):  commission of an unlawful act or control of crime

The Police claim that section 8(1)(l) applies to the “ten-codes, patrol zone and statistical codes” that are documented in the records.   The appellant does not offer representations that address this issue.

On my review of the records remaining at issue, Records 7 and 15 contain zone code information.  Record 15 also contains another type of statistical code information, as do Records 6, 8, 9, 14, 16 and 17.  Records 3 and 4 do not contain police code information.  It has long been the practice of this office to apply section 8(1)(l) to this type of information.  Accordingly, I find the zone codes in Records 7 and 15 and the statistical codes in Records 6, 8, 9, 14, 15, 16 and 17 exempt under section 38(a), read with section 8(1)(l).

Section 8(2)(a):  law enforcement report

The word “report” means “a formal statement or account of the results of the collation and consideration of information”.  Generally, results would not include mere observations or recordings of fact [Orders P-200, MO-1238, MO-1337-I].

The title of a document is not determinative of whether it is a report, although it may be relevant to the issue [Order MO-1337-I]. 

Although the Police have claimed the application of section 8(2)(a), they have not provided representations that address the application of this exemption to the records at issue.

On my review, none of the records that remain at issue qualify as a report within the meaning of section 8(2)(a).  Records 3 and 4, described above, clearly do not qualify as “reports” within the meaning of section 8(2)(a).  Record 3 is an administrative letter and Record 4 is a piece of correspondence from the appellant to the Police.  Records 7, 9 and 14 are occurrence reports compiled in response to a police investigation.  Generally, occurrence reports generated by police forces have been found not to meet the definition of “report” under the Act, in that they are more in the nature of recordings of fact than formal, evaluative accounts of investigations (see Orders PO-1845, PO-1796, P-1618, MO-1986, MO-1771-I, M-1341, M-1141 and M-1120).  In Order M-1109, Assistant Commissioner Tom Mitchinson made the following comments about police occurrence reports:

An occurrence report is a form document routinely completed by police officers as part of the criminal investigation process.  This particular Occurrence Report consists primarily of descriptive information provided by the appellant to a police officer about the alleged assault, and does not constitute a “report.” 

On my review of the occurrence reports at issue in this appeal, I am satisfied that they also do not meet the definition of “report” under the Act, in that they consist essentially of observations and recordings of fact.  Although there are a few comments by police officers which might be considered evaluative, the records consist primarily and essentially of descriptive information.

In conclusion, I find that section 38(a), read with section 8(2)(a), does not apply to Records 3, 4, 7, 9 and 14. 

EXERCISE OF DISCRETION

The section 38(a) and (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 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 examined the records and weighed the appellant’s right to access against the affected parties’ right to privacy.  The Police state that they looked at their historical practice of releasing this type of information in circumstances of this nature and whether disclosure of the information would increase public confidence in the operation of their police service.  The Police concluded that they would have made the same decision to not disclose in similar circumstances and that disclosure would not increase public confidence in their work.  Accordingly, the Police state that they chose to deny the appellant access to the records at issue in their entirety.

The appellant takes issue with the Police’s view on the issue of disclosure as a means of increasing public confidence in the operation of their institution.  He states:

Disclosing records is an instrument of accountability.  Providing police records to affected person(s) or public scrutiny ensures a measure of integrity in developing appropriate and reputable public trust and confidence in the police.  Disclosure has been recognized by the courts and public alike as a fundamental tool of accountability.  In criminal proceedings, full disclosure of relevant police records and evidence has through time become a legal requirement by the Courts and considered as one of the fundamental tools of accountability to instil and maintain public confidence in the legal system.

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 the appellant has raised public accountability as a legitimate factor weighing in favour of disclosure, I am satisfied that in the circumstances of this case, involving a highly sensitive matter between the appellant and another individual, the Police properly exercised their discretion by denying access to information that I have found exempt under sections 38(a) and (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 which 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.

In this case the Police chose to deny access to the records in their entirety.  The Police did not provide representations on the severance issue.

In contrast, the appellant provided detailed representations.  The appellant asserts that the records at issue can be severed without disclosing information that falls within the section 38(a) or (b) exemptions. 

I agree to some extent with the appellant’s position.  In my view, it is not reasonable that the Police took a blanket approach to the disclosure of the records.  Portions of the records contain information that is not personal in nature.  I see no reason why this information should be withheld from the appellant particularly where none of the exemptions in the Act apply to it.  In addition, and even more importantly, many of the records contain the appellant’s personal information.  In my view, this information could have been severed and disclosed without revealing exempt information. 

In particular, I find that the Police did not properly discharge their responsibilities under section 4(2) by failing to sever and disclose to the appellant responsive information in Records 6, 7, 8, 9, 15, 16 and 17.  Accordingly, I will order the Police to disclose it.

ORDER:

1.         I order the Police to disclose Records 3 and 4 in their entirety by February 29, 2008.

2.         I order the Police to disclose Records 6, 8, 9, 14, 15, 16 and 17 in part in accordance with the highlighted versions of theses records included with the Police’s copy of this order, by February 29, 2008.  To be clear, the Police must not disclose the highlighted portions of these records.

3.         In order to verify compliance, I order the Police to provide me with copies of the records ordered disclosed, pursuant to Provisions 1 and 2 of this order.

Original Signed by:                                                                       January 29, 2008                                   

Bernard Morrow