ORDER MO-3662

Appeal MA17-112

Niagara Regional Police Services Board

September 26, 2018

Summary: The appellant submitted a request to the Niagara Regional Police Services Board (the police) for access under the Municipal Freedom of Information and Protection of Privacy Act  (the Act ) for all information relating to himself. The police located responsive records and granted partial access to them. The police withheld some information as non-responsive to the request. The police also withheld portions of the records citing the discretionary exemptions at section 38(a), read in conjunction with the law enforcement exemptions in sections 8(1)(c) and 8(1)(l), as well as the discretionary personal privacy exemption at section 38(b). The appellant appealed the police’s decision to withhold the information and claimed that additional records should exist. In this order, the adjudicator finds that some of the information identified by the police as non-responsive to the request is responsive and orders the police to issue an access decision with respect to it. She further finds that section 38(a) read with sections 8(1)(c) and (l), and section 38(b) apply to the information the police withheld under those exemptions. She also finds that the police conducted a reasonable search for records responsive to the request.

Statutes Considered: Municipal Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. M.56 , as amended, sections 8(1)(c), 8(1)(l), 14(3)(b), 17, 38(a), 38(b).

Orders Considered: Orders M-393 and MO-2199.

OVERVIEW:

[1]  The Niagara Regional Police Services Board (the police) received a request under the Municipal Freedom of Information and Protection of Privacy Act  (the Act ) from the requester for “all information I am entitled to under the Freedom of Information Act.”

[2]  In a decision issued February 10, 2017 (the February decision), the police granted partial access to the records that they located in response to the request. They denied access to portions of the records over which they claimed the discretionary exemptions at section 38(a) in conjunction with section 8(1)(c), and section 38(b) with reference to section 14(3)(b). The police also withheld some information they determined to be non-responsive to the request.

[3]  The appellant appealed the decision. It is clear from the file that the police interpreted the request for “all information I am entitled to” to be for information relating to the appellant. This interpretation was not disputed.

[4]  During mediation, the appellant advised the mediator that he believed more records existed that the police had not disclosed. Following a further search, the police located additional records and issued a second decision on April 18, 2017 (the April decision). The April decision granted partial access to the additional records. In addition to claiming the same exemptions as in the February decision, the police also applied the exemption at section 8(1)(l) (facilitate commission of an unlawful act) of the Act  to withhold some of the records that were the subject of the April decision.

[5]  The appellant appealed the April decision as well, seeking full disclosure of all the records.

[6]  The appellant continued to maintain that still more records exist than the police identified. After completing an additional search, the police advised the mediator that no further responsive records exist and that no further records would be disclosed.

[7]  As a mediated resolution could not be reached, the appellant elected to proceed to the adjudication stage of the appeal process, where a written inquiry is held.

[8]  As part of the inquiry, both the appellant and the police were invited to submit representations in response to the issues addressed below. The police made brief representations. The appellant’s representations did not address the issues set out in the Notice of Inquiry, and instead focused on unrelated matters.

[9]  In their representations, the police withheld much information as “not relevant”. I have treated the information that the police identified as “not relevant” to mean not responsive. For the reasons that follow, I find that some of the information identified by the police as not responsive to the request to be responsive and I order the police to issue an access decision with respect to those portions of the records. I further find that the discretionary exemptions at section 38(a), read in conjunction with the exemptions at sections 8(1)(c) and (l), as well as section 38(b), apply to the information over which they have been claimed. Finally, I find that the police’s search for responsive records was reasonable.

RECORDS:

[10]  There are 16 records at issue in this appeal, which consist of 14 general occurrence reports, one incident report and an arrest report. For ease of reference, and because I have found that some of the records contain information that was responsive to the request but that the police withheld as non-responsive, I have identified the records by number, in the order in which they were disclosed by the police (and removing identifying report numbers), as follows:

·  Record 1	General Occurrence Report
·  Record 2	General Occurrence Report
·  Record 3	General Occurrence Report
·  Record 4	General Occurrence Report
·  Record 5	General Occurrence Report
·  Record 6	General Occurrence Report
·  Record 7	General Occurrence Report
·  Record 8	General Occurrence Report
·  Record 9	General Occurrence Report
·  Record 10	General Occurrence Report
·  Record 11	General Occurrence Report
·  Record 12	General Occurrence Report
·  Record 13	General Occurrence Report
·  Record 14	General Occurrence Report
·  Record 15	General Incident Report
·  Record 16	Arrest Report

ISSUES:

1. What is the scope of the request? What records are responsive to the request?
2. Do the records contain “personal information” as defined in section 2(1) and, if so, to whom does it relate?
3. Does the discretionary exemption at section 38(a) in conjunction with the exemptions at sections 8(1)(c) and (l) apply to the information at issue?
4. Does the discretionary exemption at section 38(b) apply to the information at issue?
5. Did the police exercise their discretion under sections 38(a) and (b)? If so, should this office uphold the exercise of discretion?
6. Did the police conduct a reasonable search for records?

DISCUSSION:

Issue A:  What is the scope of the request? What records are responsive to the request?

[11]  Section 17  of the Act  imposes certain obligations on institutions when responding to requests for access to records. Institutions should adopt a liberal interpretation of a request, in order to best serve the purpose and spirit of the Act . To be considered responsive to the request, records must “reasonably relate” to the request. [1]

[12]  In their representations, the police state only that they interpreted the initial request, for “all information I am entitled to under [the Act ]” to be for all information pertaining to appellant, and conducted a search for all reports in which he was named.

[13]  The police went on to conduct further searches (discussed in greater detail, as Issue F, below). They ultimately located 18 general occurrence reports, an incident report and an arrest report. Of the 18 records located, two were disclosed to the appellant in full. The police gave partial access to the remaining 16 records, but withheld some information as non-responsive, or subject to the various exemptions discussed below.

[14]  The police’s representations regarding records they claimed to be non-responsive are sparse, limited to what I have summarized above. The appellant, meanwhile, made no representations on this issue.

[15]  The police withheld two classes of information as not responsive. First, they claimed that all date and time stamp information on each record that identified the time it was generated, and, in the case of Records 15 and 16, by whom, was not responsive. I agree as this information refers to matters relating not to the appellant or the occurrences in question, but to the police’s search for records once the request was made. As this information would have been generated in the course of the police conducting their search for responsive records, it is not itself information that reasonably relates to the appellant’s request. I therefore uphold the police’s decision to withhold this information as non-responsive.

[16]  Second, the police claimed that information contained within some of the occurrence reports and an incident report was not relevant and withheld those parts in full. I have reviewed the records and find that six items in three records contain information the police withheld as not responsive are, in fact responsive to the request. Those records, with the responsive portions, are:

1. Record 5 - General Occurrence Report, at pages 5-12;
2. Record 5 – General Occurrence Report, at pages 17-21;
3. Record 7 – General Occurrence Report, at pages 4-9;
4. Record 7 – General Occurrence Report, at pages 12-16; and,
5. Record 16 – Arrest Report, at page 5; and,
6. Record 16 – Arrest Report, at page 6.

[17]  Pages 5-12 of Record 5 are an eight-page report related to a particular incident involving the appellant that identifies the appellant by name at the top of page 5.

[18]  Pages 17-21 of Record 5 consist of five pages of notes that name the appellant.

[19]  Pages 4-9 of Record 7, like Record 5, are a six-page report for an incident that identifies the appellant by name at the top of page 4.

[20]  Pages 12-16 of Record 7 are notes relating to an incident in which the appellant was involved, again naming the appellant on the first page.

[21]  Page 5 of Record 16 is a report naming the appellant. The police have claimed that the entire page is not responsive to the request.

[22]  Finally, page 6 of Record 16 is a supplementary report that names the appellant and describes a particular incident. The police have claimed that the entire page is not responsive.

[23]  I find that the above-noted portions of the records that the police withheld contain information that relates to the appellant and is therefore responsive to the request. As a result, I will order the police to issue an access decision with respect to the above-noted portions of Records 5, 7 and 16 that I have identified as responsive to the appellant’s request for access to information relating to him.

Issue B:  Do the records contain “personal information” as defined in section 2(1) and, if so, to whom does it relate?

[24]  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 if 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;

[25]  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. [2]

[26]  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. [3]

[27]  To qualify as personal information, it must be reasonable to expect that an individual may be identified if the information is disclosed. [4]

[28]  The police submit that the responsive records contain the personal information of identifiable individuals, including the appellant.

[29]  Having reviewed the police’s representations and the records at issue, I am satisfied that the records at issue contain information that meets the definition of “personal information” in paragraphs (a), (b), (d), (e), (g) and (h) in section 2(1). The withheld information includes the names, addresses and telephone numbers of identifiable individuals other than the appellant, as well as information relating to their race, national origin, ethnicity, age, sex and marital status, as well as their statements and views regarding the events at issue in the various investigations that are the subject of the individual occurrence reports.

[30]  I therefore find that the records in issue contain the personal information of the appellant, and that withheld portions of the records also contain the personal information of other, identifiable individuals.

Issue C:  Does the discretionary exemption at section 38(a) in conjunction with the exemptions at sections 8(1)(c) and (l) apply to the information at issue?

[31]  As noted above, the records contain the appellant’s personal information in addition to the personal information of identifiable individuals. 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.

[32]  Section 38(a) reads:

A head may refuse to disclose to the individual to whom the information relates personal information,

if section 6, 7, 8, 8.1, 9, 10, 11, 12, 13 or 15 would apply to the disclosure of that personal information.

[33]  Section 38 (a) of the Act  recognizes the special nature of requests for one’s own personal information and the desire of the legislature to give institutions the power to grant requesters access to their personal information. [5]

[34]  Where an institution denies access under section 38(a), it must demonstrate that, in exercising its discretion to deny access, it considered whether a record should be released to the requester because the record contains his or her personal information. The police’s exercise of discretion is discussed further under Issue D, below.

[35]  In this case, the police rely on section 38(a) in conjunction with sections 8(1)(c) and (l) to withhold parts of the records.

[36]  Sections 8(1)(c) and (l) state that:

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;

…

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

[37]  It is not enough for an institution to take the position that the harms under section 8 are self-evident from the record or that the exemption applies simply because of the existence of a continuing law enforcement matter. [6] The institution must provide evidence about the potential for harm. It must demonstrate a risk of harm that is well beyond the merely possible or speculative, although it need not prove that disclosure will in fact result in such harm. How much and what kind of evidence is needed will depend on the type of issue and seriousness of the consequences. [7]

[38]  In their representations, the police have described the harms that may result if their operational codes and other investigative techniques are disclosed.

Section 8(1)(c)

[39]  Section 8(1)(c) allows police to withhold information from records that would reveal investigative techniques and procedures currently in use or likely to be used in law enforcement.

[40]  To meet the “investigative technique or procedure” test under section 8(1)(c), the police must show that disclosure of the technique or procedure to the public could reasonably be expected to hinder or compromise its effective utilization. [8] Further, the techniques or procedures must be investigative. The exemption will not apply to enforcement techniques or procedures. [9]

[41]  In this case, I cannot describe the withheld material more specifically without revealing the substance of the information at issue. For this reason, this portion of the police’s representations was received in confidence. [10] I can say that the police’s representations directly address the link between disclosing the withheld information and the claimed harms in section 8(1)(c) and I find that disclosing the information could reasonably interfere with their ability to perform their duties safely, effectively and in a timely way. While the appellant has made no representations on this point, I have carefully reviewed the police’s representations and find that the police have provided sufficient evidence to establish a reasonable expectation of harm with respect to the release of this information. I find, therefore, that the exemption at section 38(a), in conjunction with section 8(1)(c), applies to the information withheld under those exemptions.

Section 8(1)(l)

[42]  The police submit that the discretionary exemption at section 38(a) in conjunction with section 8(1)(l) applies to confidential police message codes (“ten codes” and “900 codes”) contained in the records.

[43]  The police referred to Order M-393 in their representations, in which the Ottawa Police Services Board took the position that these message codes are used by police sources as a means of efficiently communicating with each other in a way that, if intercepted, would not permit non-police personnel to determine the content or importance of the communication. If disclosed, the codes could place police officers in potentially dangerous situations or could facilitate the commission of unlawful acts. Inquiry Officer Anita Fineberg found a clear and direct link between disclosure of police codes and the types of harm described in section 8(1)(l).

[44]  Previous orders of this office have found that section 8(1)(l) applies to police message codes and internal communications because of the reasonable expectation of harm that may result from their release. [11]

[45]  In Order MO-2199, Commissioner Brian Beamish wrote that:

A number of decisions of this office have consistently found that Police ten codes or “900” codes, and zone and sector codes qualify for exemption under section 8(1) (l) of the Act  (see for example Orders M-393, M-757 and PO-1665). These codes have been found to be exempt because of the existence of a reasonable expectation of harm to an individual or individuals and a risk of harm to the ability of the police to carry out effective policing in the event that this information is disclosed.

[46]  Absent any representations from the appellant on this point, I find no reason to depart from the approach taken by previous orders of this office and find that the operational codes withheld by the police from the records are exempt from disclosure under section 38(a) in conjunction with section 8(1)(l).

ISSUE D:  Does the discretionary exemption at section 38(b) apply to the information at issue?

[47]  As noted above, since I have found that the records contain the personal information of both the appellant and other identifiable individuals, section 36(1) applies to this appeal. Again, it gives individuals a general right of access to their own information, with section 38 providing a number of exemptions from this right.

[48]  Under section 38(b), where a record contains personal information of both the requester and another individual, and disclosure of the information would be an “unjustified invasion” of the other individual’s personal privacy, the institution may refuse to disclose that information to the requester. [12]

[49]  If the information falls within the scope of section 38(b), that does not end the matter. The institution may still exercise its discretion to disclose information to the appellant. This involves a weighing of the appellant’s right of access to his own personal information against another individual’s right to protection of their privacy.

[50]  Sections 14(1) to (4) give guidance in determining whether disclosure of the information would be an unjustified invasion of personal privacy under section 38(b). None of the circumstances listed in sections 14(1) to (4) is present here.

[51]  In this case, the factors and presumptions at sections 14(2) and (3) help in determining whether disclosure would or would not be an unjustified invasion of personal privacy under section 38(b). In making this determination, this office will consider and weigh the factors and presumptions in sections 14(2) and (3) and balance the interests of the parties. [13]

Section 14(3)(b): investigation into possible violation of law

[52]  The police submit that the presumption at section 14(3)(b) applies to the withheld information at issue. Based on the police’s representations and my review of the records, I find that the withheld information falls squarely within the presumption at section 14(3)(b). Even though some incidents in the records at issue resulted in Mental Health Act apprehensions as opposed to criminal matters, the personal information at issue was compiled and is identifiable as part of investigations into various incidents, all of which are violations of law under the Criminal Code of Canada .

Section 14(2) factors

[53]  Section 14(2) also sets out various factors that may be relevant in determining whether disclosure of personal information would constitute an unjustified invasion of personal privacy under section 38(b). [14]

[54]  Some of the factors listed in section 14(2), if present, weigh in favour of disclosure, while others weigh in favour of non-disclosure. The police submit that none of the factors set out in section 14(2) favouring disclosure are present in the circumstances of this request. Having reviewed the withheld information and in the absence of any representations from the appellant on this point, I agree.

Does the absurd result principle apply?

[55]  According to this principle, where the requester may have originally supplied information to the police or is otherwise aware of it, the information may not be exempt under section 38(b) because to withhold it would be absurd and inconsistent with the purpose of the exemption. [15]

[56]  I have reviewed the records and the police’s representations and find that the withheld information includes police notations regarding the nature of their investigations and includes sensitive information to assist officers in investigating complaints involving the appellant which, if disclosed, could impair or defeat certain investigative techniques and pose a risk to the safety of officers or others. I therefore find that, even if the appellant is already aware of some of the information, the absurd result principle does not apply in these circumstances.

[57]  Having found that only the presumption in section 14(3)(b) is a relevant consideration, I find that the withheld personal information is exempt under section 38(b).

ISSUE E:  Did the police exercise their discretion under section 38(a) and (b)? If so, should this office uphold the exercise of discretion?

[58]  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.

[59]  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; or it fails to take into account relevant considerations.

[60]  While this office may send the matter back to the institution for an exercise of discretion based on proper considerations, [16] it may not, however, substitute its own discretion for that of the institution. [17]

Relevant considerations

[61]  Relevant considerations may include, but are not limited to, those listed below: [18]

• the purposes of the Act , including that information should be available to the public
• exemptions from the right of access should be limited and specific
• the wording of the exemption and the interests it seeks to protect
• whether the requester has a sympathetic or compelling need to receive the information
• whether the requester is an individual or an organization
• 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.

[62]  In withholding information from the records, I find that the police properly exercised their discretion pursuant to sections 38(a) and (b).

[63]  In their representations, the police referred to several factors that informed their decision to withhold the personal information of identifiable individuals as well as information relating to law enforcement and investigative techniques. Overall, with the exception of the information that was withheld but that I have found to be relevant, and given the amount of disclosure made, I am satisfied that the police attempted to give the appellant as much access as possible to his own personal information while attempting to protect the confidentiality of their operational codes, investigative techniques, as well as the personal privacy of other involved parties.

[64]  I therefore find that the police properly exercised their discretion in withholding information regarding police codes and investigative techniques and the personal information of identifiable individuals after weighing relevant factors. I am satisfied that the police did not take into account irrelevant factors in exercising their discretion and there is no evidence before me that the police acted in bad faith.

Issue F:  Did the police conduct a reasonable search for records?

[65]  The appellant’s appeal was also founded on his view that the police had not disclosed all records responsive to his request. Specifically, during mediation, the appellant described incidents dating back to 2005 for which he said the police had not disclosed records.

[66]  Because the appellant claims that additional records exist beyond those identified by the police, I must determine whether the police conducted a reasonable search for records as required by section 17. [19] If I am satisfied that the search was reasonable in the circumstances, I will uphold the police’s decision. If I am not satisfied, I may order further searches.

[67]  The Act  does not require the police to prove with absolute certainty that further records do not exist. However, the police must provide sufficient evidence to show that they have made a reasonable effort to identify and locate responsive records. [20] To be responsive, a record must be reasonably related to the request. [21]

[68]  A reasonable search is one in which an experienced employee knowledgeable in the subject matter of the request expends a reasonable effort to locate records which are reasonably related to the request. [22]

[69]  A further search will be ordered if the institution does not provide sufficient evidence to demonstrate that it has made a reasonable effort to identify and locate all of the responsive records within its custody or control. [23]

[70]  Although a requester will rarely be in a position to indicate precisely which records the institution has not identified, the requester still must provide a reasonable basis for concluding that such records exist. In this case, however, the appellant described to the mediator events he believed would have resulted in the creation of records.

[71]  The police were required to submit by affidavit evidence a summary of the steps they took to search for responsive records. The police submitted affidavits sworn by two employees setting out the parameters of their search, the steps taken and the databases searched.

[72]  The police submit that they searched three databases: first, they searched their current in-house computer system for records from the middle of May 2006 to date, and then a predecessor system for any records from 1989 to the middle of May 2006, both using names and addresses. Third, they searched an electronic content management system used to search for information regarding criminal charges.

[73]  According to the police’s representations, three reports from 1997 and 1998 in which the appellant had been named had been purged in accordance with the police’s records retention schedule. Three more reports from 2006 (the year of the transition of the police’s computer systems), were also purged from the older system.

[74]  The police also state that in the initial request, the appellant’s date of birth was illegible and was therefore recorded incorrectly. This, they say, may have accounted for certain reports being originally missed.

[75]  During mediation, the appellant identified seven additional incidents and/or disputes dating back to 2005 that he believed would have been documented. Using the appellant’s correct date of birth, the police conducted a further search and located records from two incidents, one in 2001 and another in 2005, which resulted in the disclosure of more records to the appellant.

[76]  In the circumstances, I am satisfied that the police took reasonable steps to search all databases available to them to respond to the appellant’s request. Once the appellant’s correct date of birth was clarified, it was reasonable for police to conduct a further search and they did so, locating additional records which were then disclosed to the appellant.

[77]  The police submit that they have no other databases to search.

[78]  The affidavits of police staff provided in response to this inquiry and their representations about their search of all databases at their disposal, as well as the steps taken to locate and share additional responsive records after the appellant provided corrected and new information, satisfy me that the police have now completed a reasonable search for responsive records. I therefore find no reason to require that the police conduct yet a further search for responsive records.

ORDER:

1. I uphold the police’s decision to deny access to information that it withheld under section 38(a), read with sections 8(1)(c) and 8(1)(l), and section 38(b).
2. I uphold the police’s decision to deny access to information as non-responsive, in part.
3. I order the police to issue an access decision in accordance with the Act  with respect to the following records that they have identified as not responsive to the request but which I have found to be responsive: pages 5-6 and 17-21 of Record 5; pages 4-9 and 12-16 of Record 7; and pages 5 and 6 of Record 16. For the purposes of sections 19 , 22  and 23  of the Act , the date of this order shall be deemed to be the date of the request.
4. I uphold the police’s search for responsive records as reasonable.

Original Signed by:		September 26, 2018
Jessica Kowalski
Adjudicator