ORDER MO-3984

Appeal MA18-00779

City of Toronto

December 10, 2020

Summary: The City of Toronto (the city) received a request under the Municipal Freedom of Information and Protection of Privacy Act  (the Act ) for access to records relating to 911 calls for the Toronto Paramedic Services. The city issued a decision granting partial access to the responsive records with severances under sections 8(1)(a) (law enforcement matter) and 8(1)(b) (law enforcement investigation) of the Act . The requester, now the appellant, appealed the city’s decision to this office. In this order, the adjudicator does not uphold the city’s decision, and orders the city to disclose the records to the appellant.

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

OVERVIEW:

[1]  This order addresses the issue of access to data related to 911 calls placed during a high profile “mass casualty event” in Toronto in 2018, specifically, the Toronto van attack that took place on April 23, 2018. A media requester submitted an access request to the City of Toronto (the city), pursuant to the Municipal Freedom of Information and Protection of Privacy Act  (the Act ), for a list of “all 911 calls Toronto Paramedic Services received on the following three days: April 23, 2018, July 22, 2018 and July 23, 2018.” Additionally, the requester sought the following information about the 911 calls:

1. What time each call came in;
2. How long it took a dispatcher to answer each call;
3. The nature of the call. Please break down the type of emergency (e.g. gunshot wound, stabbing wound, shots fired, heart attack, other medical situations etc.);
4. The caller’s location;
5. Whether first responder(s) were sent out because of that specific call;
6. The identifying number of each ambulance that was sent out to a call;
7. The time it took from the call being placed to 911 until first responder(s) arrived on scene; and
8. How long the responding ambulance waited at the hospital processing a patient until they were released to take other calls.

[2]  The city created two Excel spreadsheets, one for April 23 and one for July 22-23, in response to the request and issued a decision to partially disclose the responsive records, citing sections 8(1)(a) (law enforcement matter) and 8(1)(b) (law enforcement investigation) of the Act  to deny access to the withheld information. The city noted that it had removed “all information regarding the mass casualty events.”

[3]  The requester, now the appellant, appealed the city’s decision to this office.

[4]  During mediation, the appellant confirmed that she is seeking access to all the severed information. The city maintained its position that sections 8(1) (a) and (b) of the Act  apply to the withheld information.

[5]  As a mediated resolution was not possible, the appeal was transferred to the adjudication stage for an inquiry under the Act . I commenced my inquiry by inviting representations from the city, initially. Confidential representations were received from the city, and a non-confidential copy of those representations was shared with the appellant in accordance with Practice Direction 7. The appellant submitted representations in response, which were shared with the city.

[6]  During the inquiry, the city sent the appellant a revised decision releasing additional information. Reply representations were then received from the city, and sur- reply representations were received from the appellant. The only information remaining at issue in this appeal is the information requested for the event that took place on April 23, 2018 (the Toronto van attack).

[7]  In this decision, I do not uphold the city’s decision to withhold the requested information under sections 8(1) (a) or (b) of the Act , and order the city to disclose it to the appellant.

RECORDS:

[8]  The information remaining at issue in this appeal consists of severed portions of information relating to 911 calls in a single Excel spreadsheet related to the Toronto van attack on April 23, 2018. This information includes: the Rec ID, RMI number, the time the call came in, the caller’s location, the nature of the call, the vehicle number, the time of arrival at the scene, and the hospital arrival time.

DISCUSSION:

Does the discretionary law enforcement exemption at sections 8(1)(a) or (b) apply to the withheld information?

[9]  The city has withheld information about 911 calls and ambulance response times relating to a mass casualty event on April 23, 2018, the Toronto van attack, arguing that sections 8(1)(a) and 8(1)(b) apply to it. Those sections state:

8(1) A head may refuse to disclose a record if the disclosure could reasonably be expected to,

(a) interfere with a law enforcement matter;

(b) interfere with an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result;

[10]  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, or

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

[11]  The term “law enforcement” has covered the following situations:

• a municipality’s investigation into a possible violation of a municipal by-law. [1]
• a police investigation into a possible violation of the Criminal Code . [2]
• a children’s aid society investigation under the Child and Family Services Act. [3]
• Fire Marshal fire code inspections under the Fire Protection and Prevention Act, 1997. [4]

[12]  This office has stated that “law enforcement” does not apply to the following situations:

• an internal investigation by the institution under the Training Schools Act where the institution lacked the authority to enforce or regulate compliance with any law. [5]
• a Coroner’s investigation or inquest under the Coroner’s Act , which lacked the power to impose sanctions. [6]

[13]  Generally, the law enforcement exemption must be approached in a sensitive manner, recognizing the difficulty of predicting future events in a law enforcement context.

[14]  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. [7] The institution must provide detailed 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. [8]

Section 8(1)(a): law enforcement matter

[15]  The matter in question must be ongoing or in existence. [9] The exemption does not apply where the matter is completed, or where the alleged interference is with “potential” law enforcement matters. [10]

[16]   “Matter” may extend beyond a specific investigation or proceeding. [11] The institution holding the records need not be the institution conducting the law enforcement matter for the exemption to apply. [12]

Section 8(1)(b): law enforcement investigation

[17]  The law enforcement investigation in question must be a specific, ongoing investigation. The exemption does not apply where the investigation is completed, or where the alleged interference is with “potential” law enforcement investigations. [13] The investigation in question must be ongoing or in existence. [14]

[18]  The institution holding the records need not be the institution conducting the law enforcement investigation for the exemption to apply. [15]

Representations of the city

[19]  As noted above, the city submitted confidential representations in this appeal, which I have reviewed in full, but will not set out below, since I accepted that they met the confidentiality criteria in Practice Direction 7.

[20]  In the non-confidential portions of its representations, the city submits that it is generally known that the Toronto van attack was and is still the subject of law enforcement investigations and a law enforcement proceeding or matter. The city notes that a trial related to multiple counts of alleged violations of the Criminal Code  is currently underway. [16] The city argues that there is no real question that there is an ongoing law enforcement investigation or matter.

[21]  The city submits that the only question concerning the applicability of sections 8(1)(a) and 8(1)(b) is whether it is reasonable to expect that the disclosure of the withheld information would interfere with the current matter and investigation. The city argues that considering the sensitive matter to which it has applied the exemptions and recognizing the difficulty of predicting future events in a law enforcement context, these harms have been established. The city submits that disclosure of the withheld information will allow individuals to track the movements of those involved in the emergency response. The city submits that this information could be matched to individuals in their professional capacity (first responders) through accessing other information available to the public through legitimate means. The city argues that publicly disclosing the locations and movements of individuals with potential information about the mass casualty event would interfere with the ongoing law enforcement matters.

[22]  The city submits that individuals with a legitimate (non-criminal) personal interest in this information and its relationship to the current law enforcement matters can obtain this information (with appropriate safeguards from potential harms) in accordance with the various criminal law proceedings and established procedures of the criminal law regime. The city submits that the disclosure of this information (under the Act ) would identify the locations, movements and individuals operating in and around the various events to the public at large, thereby potentially also leading to disclosure of the locations and movements of other individuals (witnesses, complainants, and victims requiring a response) in a personal capacity. The city further submits that while the data-matching required to identify these individuals may not be readily available, there is potential that assiduous inquirers, not constrained by regulations concerning appropriate use of personal information, may be able to deduce this information.

Representations of the appellant

[23]  The appellant submits that the information requested is specific and non- identifying information concerning 911 calls and ambulance response times connected to the mass casualty event known as the Toronto van attack, which occurred on April 23, 2018. The appellant submits that she agrees with the city that there is an ongoing law enforcement investigation or matter in connection to the Toronto van attack.

[24]  The appellant submits that the main question regarding the applicability of the law enforcement exemption cited by the city is whether it is reasonable to expect that the disclosure of the information in question would interfere with the current “Toronto van attack” matters and investigations.

[25]  The appellant submits that she is unsure how the public could match the 911 call data to specific first responders, working a specific shift. The appellant submits that she has no interest in revealing the identities of first responders or victims of the Toronto van attack and she did not ask for identifying or personal information about them.

[26]  The appellant submits that instead of denying access to the information outright, the city should be forced to adhere to section 4(2)  of the Act , which obliges the city to disclose as much of any responsive record as can be reasonably severed without disclosing material which is exempt.

[27]  The appellant submits that the city’s arguments amount to speculation of potential for harm that is not sufficient to meet the threshold of “reasonable expectation of harm.” The appellant submits that the city references the “potential” to “deduce” information related to individuals and “a potential that assiduous inquirers” could misuse personal information. The appellant submits that if the “potential” to deduce information were the requirement for exempting information under the Act , then “next to nothing” would ever be released, thereby defeating the purposes of the legislation. The appellant submits that is why the Act  requires detailed evidence about the potential for harm from an institution.

[28]  The appellant submits that the limited details in the city’s representations fail to demonstrate or establish the exemptions claimed. The appellant submits that the information she has requested speaks to response times and deployment decisions on the part of the institution, not the location of individuals with privacy interests or potential roles to play as part of a law enforcement matter.

The city’s reply

[29]  The city argues that in previous decisions the IPC has determined the applicability of the section 8(1) exemption should not be determined by attributing self-reported statements about the intention or skills of the requester to the public at large. The city relies on Order MO-1719 to argue that the IPC has determined, even where there has been no evidence provided to indicate that a requester intends to use the information to “encourage or create” the harms sought to be avoided by section 8(1), that disclosure should not be ordered because disclosure to one requester is disclosure to the world.

[30]  The city disputes the appellant’s suggestion that there is no method to match the locations of specific ambulance units, or other workplace locations with the individuals involved in an incident. The city argues that “such a data-matching exercise is fairly easily done,” and even partial disclosure of such records would allow a linkage between the unit-by-unit tracking of the Toronto Paramedic Services (Paramedic) response and the individuals involved in the units. The city further argues that once any linkage between the individuals involved in a unit or incident is made, the individual’s full working day could be mapped due to the level of detail of the requested information.

[31]  The city argues that even if data-matching from one source does not capture all the individuals involved, some specific individuals could be identified. The city goes on to argue that an individual could use partial information from multiple sources to gain enough information to identify many or all the individuals involved in the Toronto Paramedic Service response. The city further argues that even linkages of only some individuals to specific events and units could lead to the harms previously identified. The city submits that while the appellant alleges no current desire to data-match the withheld information to the individuals involved, that is not a reasonable basis to reject the potential harm, because it cannot be assumed that other members of the public would not do so.

[32]  The city disputes the appellant’s submission that the “possibility that a person could deduce or otherwise obtain the information for which an exemption has been claimed ‘cannot establish’ the reasonable expectation of harm for section 8, or another exemption under the Act .” The city argues that this position is completely incorrect and “does not accord with numerous IPC decisions.” [17] The city submits that the IPC has repeatedly indicated that “the reasonable possibility that an individual who is willing to take great care and perseverance, and is aware of background, or other available information, could utilize the information requested to deduce information for which an exemption is claimed, is sufficient to establish the potential of harms” under the Act . The city submits that this individual is usually described as an "assiduous inquirer" in the context of the section 12 (solicitor-client privilege) exemption.

[33]  The city submits that the possibility of disclosure of certain information resulting in the "indirect disclosure" or "indirectly revealing" of other information to which an exemption applies has been routinely relied upon by the IPC, including under sections 8 , 10 , and 11  of the Act . In a footnote, the city lists orders to support this statement with respect to sections 10 and 11 and states that Orders PO-1772 and PO-3105 are orders where “indirect disclosure/reveal of information to which section 8 [applies] is acknowledged as a basis to withhold access.”

[34]  The city reiterates that disclosure of the withheld information on its own, would not allow an individual to cause harm. The city argues, however, that if the withheld information is released, an individual could use it in combination with basic data-matching to obtain information that would be subject to an exemption, and that is sufficient to establish that an exemption applies. The city further submits that simple manipulation of the Freedom of Information (FOI) process could be used to defeat the purposes of the Act .

[35]  The city submits that it has provided more than pure speculation of a possible harm. The city submits that it has indicated how widespread identification of participants in the Paramedic response could interfere with specific law enforcement proceedings. The city further submits that it has identified methods by which the information could be utilized to track individuals, and has given reasons why individuals would undertake such a data-matching enterprise, as well as the effects (which include both intentional and unintentional interference with law enforcement matters). The city submits, for example, another reporter may decide to data-match the information to locate individuals to interview about the events of April 23, 2018.

The appellant’s sur-reply

[36]  The appellant submits that the Toronto Police Service has released similar information [18] for 911 call information on the day of the van attack, despite the Toronto Police Service being at the heart of the ongoing law enforcement matter. The appellant argues that if the Toronto Police Service does not think a law enforcement exemption applies to 911 call information for the day of the van attack, then she is unsure on what grounds the city can argue such an exemption on behalf of the Toronto Paramedic Services.

Analysis and findings

The mandatory section 14(1) exemption

[37]  The city alleges that the disclosure of the withheld information could potentially lead, through data matching, to the disclosure of the “locations and movements of other individuals (witnesses, complainants, and victims requiring a response) in a personal capacity” [Emphasis added]. Furthermore, the city asserts that while the “data-matching required to identify these individuals may not be readily available,” “assiduous inquirers” may potentially be able to deduce this information.

[38]  To begin, I note that the city did not claim the personal privacy exemption at section 14(1) applied to the withheld information in its access decision or previously in this appeal. However, since the personal privacy exemption at section 14(1) is mandatory, I must consider its application.

[39]  For section 14(1) to apply to a record, it must contain “personal information”, which is defined in section 2(1)  of the Act  as “recorded information about an identifiable individual.” [19] The withheld information consists of coded numbers (the Rec ID and RMI number), the time of call, the caller’s location, the nature of the call, the ambulance vehicle number, the time of arrival at the scene, and the hospital arrival time with respect to 911 calls on the day of the Toronto van attack. Based on my review, I find that the withheld portions do not contain any information about identifiable individuals and that individuals could not reasonably be identified by its disclosure. Therefore, I find that the withheld information does not constitute personal information as defined by the Act .

[40]  While the city has alleged that the identity of other individuals in a personal capacity could potentially be deduced from the withheld information, beyond making this bald statement, the city has provided insufficient evidence to support its assertion. The city admits that the “data-matching required to identify these individuals may not be readily available”, but it has not provided me with detailed evidence or even an explanation as to how this data-matching could be done. The city only asserts that “assiduous inquirers” may potentially be able to deduce this information. That assertion is hypothetical and completely speculative. The city has not provided any basis for me to find that personal information of individuals could be revealed through data-matching of the withheld information. Therefore, I find that disclosure of the withheld information would not reveal any personal information as that term is defined by the Act , and I find that the mandatory personal privacy exemption at section 14(1) does not apply.

The sections 8(1)(a) and (b) law enforcement exemptions

[41]  I note that the city does not need to be the institution conducting the law enforcement matter or investigation for the law enforcement exemption to apply. [20] In this case, it is the Toronto Police Service that is conducting the law enforcement matter or investigation into the Toronto van attack and not the city.

[42]  The parties appear to agree that there is an ongoing law enforcement matter and investigation with respect to the subject matter of the withheld information, and I have no reason to find otherwise. Therefore, I find that there is an ongoing law enforcement matter and investigation with respect to the subject matter of the withheld information. However, the existence of a law enforcement matter and investigation alone is not sufficient to establish that the sections 8(1)(a) or (b) exemptions apply to the withheld information. The city must establish that disclosure could reasonably be expected to result in the listed harms. It is not enough for the city 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. [21]

[43]  While portions of the city’s representations were withheld as confidential, generally the city’s concern about disclosure of the withheld information is that it could potentially compromise the witnesses’ recollection of their experience from the incident, which could potentially result in unreliable evidence in the law enforcement matter or investigation. The city does not argue that this harm would result directly from the disclosure of the withheld information. However, the city alleges this harm could indirectly result from the disclosure of the withheld information, because the withheld information could be used to data-match against other information to reveal the identity of Paramedic responders or potential witnesses of the Toronto Van Attack. The city argues that disclosure of the withheld information could lead to the indirect disclosure of information to which the section 8 exemption applies.

[44]  The city’s representations referred to past orders that did not pertain to section 8, the exemption at issue in this appeal. For example, the city’s representations included general statements about principles articulated regarding the exemptions in sections 10 (third party information), 11 (economic and other interests), and 12 (solicitor-client privilege), which are not at issue in this appeal, and relied on principles in orders addressing sections 10 and 11. These sections protect different interests than the exemption in section 8 that is before me.

[45]  With respect to the section 8 exemption, the city cited Orders PO-1772 and PO- 3105 as orders where “indirect disclosure/reveal of information to which section 8 [applies] is acknowledged as a basis to withhold access”. I note that the facts of both orders are not similar to those in this appeal, and neither order deals with sections 8(1)(a) and (b) or their provincial equivalents: sections 14(1)(a) and (b).

[46]  Order PO-1772 dealt with the section 14(1)(k) exemption (jeopardize the security of a centre for lawful detention). In that order, former Assistant Commissioner Tom Mitchinson acknowledged that “indirect disclosure” could provide a basis to deny access. However, he found that the section 14(1)(k) exemption did not apply to the records in that order, because “[t]he records do not contain any specific references to formalized policies or procedures respecting the security of the detention centre, or any other information that could indirectly reveal information of this nature.” In other words, the ministry had not provided sufficient evidence to establish a reasonable expectation of jeopardy to the security of a correctional facility, should the records be disclosed.

[47]  Order PO-3105 dealt with the section 14(1)(l) exemption (facilitate the commission of an unlawful act or hamper the control of crime) and does not support the city’s assertion. In this order, the adjudicator held that the section 14(1)(l) exemption applied, because she accepted that “the inherent vulnerabilities in the OHIP Claims System could be exploited with the disclosure, knowledge and use of the withheld information” based on the evidence submitted by the ministry. The findings of the adjudicator in that order were fact and record-specific, and I do not find them applicable in the circumstances of the appeal before me.

[48]  I acknowledge that in certain circumstances information that might be indirectly revealed by disclosure can lead to establishing harm under the law enforcement exemption. However, the precondition is that there must be sufficient evidence to establish that. In this appeal, the city argues that disclosure of the withheld information would indirectly reveal information to which the section 8 exemption applies. From my review of the city’s representations, it is unclear what information could reasonably be expected to be indirectly revealed if the withheld information were disclosed. It appears the city may be referring to the identities of the Paramedic responders or the identities of potential witnesses in a personal capacity. I have already dealt with the issue of potential witnesses in a personal capacity under the mandatory section 14(1) exemption above.

[49]  With respect to the identity of the Paramedic responders, even if the city is arguing that disclosure of the withheld information could indirectly reveal the identities of the Paramedic responders, that alone is insufficient to establish the harm required under the section 8 exemption. As noted above, portions of the city’s representations were withheld as confidential, but the harm the city alleges could result from the disclosure of the withheld information is that it could potentially compromise the witnesses’ recollection of their experience from the incident, which could potentially result in unreliable evidence in the law enforcement matter or investigation.

[50]  Establishing the exemptions in section 8  of the Act  requires that the expectation of one of the enumerated harms coming to pass, should a record be disclosed, not be fanciful, imaginary or contrived, but rather one that is based on reason. [22] This requirement means that there must be some logical connection between disclosure of the record and the potential harm that the city seek to avoid by applying the exemption. [23] The city was required to provide detailed evidence about the potential for harm, and 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. [24]

[51]  I note that the city conceded in its representations that disclosure of the withheld information by itself would not directly result in the widespread identification of the Paramedic responders. The appellant characterizes the information she has requested as outlining response times and deployment decisions on the part of the city, not the location of individuals with privacy interests or potential roles in a law enforcement matter. Having reviewed the information, I agree with this characterization. I also note that the appellant has argued that she has no intention of data-matching the withheld information to identify the Paramedic responders. However, even if I were to accept the appellant’s intentions, the city is correct in its assertion that disclosure to the appellant is disclosure to the world. [25]

[52]  The city’s representations are inconsistent with respect to the question of how easily the withheld information could be data-matched with additional information to identify the Paramedic responders and/or other individuals related to the attack. In its initial representations, the city argues that “the data-matching required to identify these individuals may not be readily available”, but in the city’s reply representations, it argues that “such a data-matching exercise is fairly easily done”. The city’s argument appears to be that an individual with the intention of data-matching the withheld information to identify the Paramedic responders exists.

[53]  In the confidential portions of the city’s representations, the city outlines additional FOI requests that the city alleges could be made to potentially data-match with the withheld information resulting in the identification of the Paramedic responders. In my view, the city’s arguments with respect to the potential identification of the Paramedic responders is speculative and it has not provided sufficient detailed evidence to support that it is reasonably expected to occur. I am not persuaded that it is reasonable to expect that an individual with the intent, skills, and knowledge required could data-match the withheld information to other information, to identify the Paramedic responders, and then use that information to interfere with the specific ongoing law enforcement matter or investigation. First, I do not accept that it is reasonably expected that Paramedic responders could be identified indirectly from the disclosure of the withheld information. However, even if I did, the identification of the Paramedic responders is not the harm that the city seeks to avoid by applying the sections 8(1)(a) and (b) exemptions. The city must establish that identification of the Paramedic responders could reasonably be expected to result in the harm the city has alleged: the potential compromise of witnesses’ recollection of their experience from the incident, which could potentially result in unreliable evidence in the law enforcement matter or investigation.

[54]  The Toronto van attack occurred in April 2018, and the city has stated that the perpetrator of the Toronto van attack has been criminally charged and the trial is currently underway. [26] It stands to reason that if the trial is currently underway that the Toronto Police Service would have already interviewed the relevant witnesses. I cannot see how disclosure of the withheld information over two years after the date of the incident could reasonably be expected to result in the harm that the city has alleged, and the city has not provided me with sufficient evidence or even an explanation as to how that could be reasonably expected to occur. Furthermore, even if Paramedic responders could be identified indirectly from the disclosure of the withheld information, the city has failed to demonstrate the logical connection between the identification of Paramedic responders, and the potential compromise of witnesses’ recollection of their experience from the incident, which could potentially result in unreliable evidence in the law enforcement matter or investigation. The city has only made bald statements without evidence that the identification of the Paramedic responders could reasonably be expected to lead to the harm it alleges. Without the nexus between these two points, the city has failed to demonstrate the risk of harm that is well beyond the merely possible or speculative, which it is required to do to establish the application of the sections 8(1)(a) and (b) exemptions.

[55]  Based on the evidence before me, I find that the city has not established a reasonable expectation that the disclosure of the withheld information would interfere with the current law enforcement matter or investigation for the purpose of sections 8(1)(a) or (b). Additionally, from my review of the withheld information, it is not self- evident how the harms the city has posited could reasonably be expected to occur with its disclosure. Given the speculative nature of the city’s representations, and the fact that evidence amounting to speculation of possible harm is not sufficient to meet the requirements of sections 8(1)(a) and (b), I find that neither exemption applies to the withheld information, and I will order the city to disclose it.

ORDER:

1. I do not uphold the city’s decision. I order the city to disclose the records to the appellant by January 19, 2021, but not before January 14, 2021.
2. In order to verify compliance with order provision 1, I reserve the right to require the city to provide me with a copy of the records disclosed to the appellant.
3. The timeline noted in order provision 1 may be extended if the city is unable to comply in light of the current COVID-19 situation. I remain seized of the appeal to address any requests for extension.

Original Signed by:		December 10, 2020
Anna Truong
Adjudicator