ORDER MO-4244

Appeal MA21-00452

Halton Regional Police Services Board

August 25, 2022

Summary: The Halton Police Services Board (the police) received a request under the Municipal Freedom of Information and Protection of Privacy Act  for a copy of a specified police Occurrence Report. The withheld information to be addressed in this appeal consists of statements made by the appellant to an investigating police officer describing things that an individual is alleged to have said to the appellant. The police relied on section 38(b) (personal privacy) of the Act to deny access to the information at issue. In this order the adjudicator does not uphold the police’s decision. He finds that the police’s decision to withhold the information at issue, a statement made by the appellant, gave rise to an absurd result and that disclosing it to the appellant would not be inconsistent with the purpose of the section 38(b) exemption; he orders the police to disclose this information to the appellant.

Statutes Considered: Municipal Freedom of Information and Protection of Privacy Act , RSO 1990, c M.56, section 2(1)  (“definition of personal information”), 14(3)(b) and 38(b).

Orders Considered: Orders M-1146, MO-2019, MO-2321, PO-2285 and PO-3117.

OVERVIEW:

[1] The Halton Police Services Board (the police) received a request under the Municipal Freedom of Information and Protection of Privacy Act  (the Act  or MFIPPA ) for a copy of a specified police Occurrence Report. The creation of the Occurrence Report at issue in this appeal arose as a result of the appellant reporting to the police an interaction he had with an individual (the affected party) that occurred in the course of the appellant’s employment. The withheld information to be addressed in this appeal consists of statements made by the appellant to an investigating police officer describing things that the affected party is alleged to have said to the appellant.

[2] The police identified a responsive record and granted partial access to it, relying on the discretionary exemption at section 38(a) (discretion to refuse requester’s own information), in conjunction with sections 8(1)(e) (endanger the life or safety of a law enforcement officer) and 8(1)(l) (facilitate the commission of an unlawful act or hamper the control of crime), and the discretionary exemption at section 38(b) (personal privacy) of the Act  to deny access to portions they withheld.

[3] During mediation, the appellant confirmed that he is only seeking access to the specified withheld information contained in quotation marks on the second page of the occurrence report at issue, information that the police withheld under section 38 (b) of the Act . Accordingly, the other withheld information as well as the possible application of section 38 (a), in conjunction with sections 8(1)(e) and 8(1)(l), is no longer at issue in the appeal.

[4] Mediation did not resolve the appeal and it was moved to the adjudication stage of the appeals process where an adjudicator may decide to conduct an inquiry under the Act .

[5] I decided to conduct an inquiry and sought representations from the police and the affected party on the facts and issues set out in a Notice of Inquiry. Only the police provided responding representations. A non-confidential version of the police’s representations was shared with the appellant for response. The appellant made representations and the police provided reply representations which were shared with the appellant who then provided sur-reply representations in response.

[6] In this order I do not uphold the police’s decision. I find that withholding the information from the appellant would result in an absurd result and that its disclosure would not be inconsistent with the purpose of the section 38(b) exemption. I order the police to disclose the information at issue to the appellant.

RECORDS:

[7] Remaining at issue in this appeal is the withheld information contained in quotation marks on the second page of an Occurrence Report (page 1 of the General Report), which are statements made to the police by the appellant.

ISSUES:

Issue A: Does the Occurrence Report contain “personal information” as defined in section 2(1)  and, if so, whose personal information is it?

Issue B: Does the discretionary personal privacy exemption at section 38 (b) apply to the personal information at issue? Does the absurd result principle apply?

DISCUSSION:

Issue A: Does the Occurrence Report contain “personal information” as defined in section 2(1) and, if so, whose personal information is it?

Whose personal information is in the record?

[8] It is important to know whose personal information is in the record. If the record contains the appellant’s own personal information, his access rights are greater than if it does not. [1] Also, if the record contains the personal information of other individuals, one of the personal privacy exemptions might apply. [2] In this case, the police claim that the personal privacy exemption at section 38 (b) applies.

What is “personal information”?

[9] Section 2(1)  of the Act  defines “personal information” as “recorded information about an identifiable individual.”

Recorded information

[10] “Recorded information” is information recorded in any format, such as paper records, electronic records, digital photographs, videos, or maps. [3]

About

[11] Information is “about” the individual when it refers to them in their personal capacity, which means that it reveals something of a personal nature about the individual. Generally, information about an individual in their professional, official or business capacity is not considered to be “about” the individual. [4]

Identifiable individual

[12] Information is about an “identifiable individual” if it is reasonable to expect that an individual can be identified from the information either by itself or if combined with other information. [5]

What are some examples of “personal information”?

[13] Section 2(1)  of the Act  gives a list of examples of personal information:

“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, 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.

[14] The list of examples of personal information under section 2(1)  is not a complete list. This means that other kinds of information could also be “personal information.” [6]

Statutory exclusions from the definition of “personal information”

[15] Sections 2(2) , (2.1)  and (2.2)  of the Act  exclude some information from the definition of personal information. In some situations, even if information relates to an individual in a professional, official or business capacity, it may still be “personal information” if it reveals something of a personal nature about the individual. [7]

The police’s representations

[16] The police take the position that the information at issue qualifies as the personal information of the affected party and not the appellant. They submit that:

… The appellant contacted police because the words that the affected party supposedly said to the appellant were threatening. The appellant quoted the words that the affected party allegedly said; the words originated from the affected party, as indicated by the appellant in the police records. Because of this allegation, a police investigation commenced and additional personal information was compiled as part of an inquiry into a possible violation of law.

[17] The police submit that in order for the quoted words to be the appellant’s personal information then the words that were quoted in the record would have had to originate from the appellant, not the affected party.

The appellant’s representations

[18] The appellant takes the position that the information at issue is his personal information because it consists of what he reported to police about what the affected party said to him.

[19] The appellant states that he filed the complaint with the police that led to the Occurrence Report. In response to his access request, he received a redacted version of the Occurrence Report that had the police codes and information identifying the affected party removed. He says he does not seek that information. He acknowledges that the Occurrence Report may also contain some information about the police’s interaction with the affected party but again, he says that he does not seek that information. He states that he is only interested in the information in the Occurrence Report that he himself provided to the police. He submits that:

The reality is I’m requesting the quotes I said in that report to be unredacted and the report to reflect that, I’m entitled to read what I quoted to the officer as it’s my own information that I gave at the time of the incident.

Analysis and finding

[20] The Occurrence Report deals with a complaint that was made by the appellant about the statements alleged to have been made by the affected party about the appellant. The incident that occurred caused the appellant to contact the police and the police attended. Having reviewed it, I find that the withheld information at issue contains both the appellant’s and the affected parties’ personal information, which falls within the scope of the definition of personal information at section 2(1)  of the Act . The information reveals something of a personal nature about both of these individuals – that they had an interaction that resulted in police involvement.

Issue B: Does the discretionary personal privacy exemption at section 38(b) apply to the personal information at issue? Does the absurd result principle apply?

[21] 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 some exemptions from this right.

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

[23] The section 38(b) exemption is discretionary. This means that the institution can decide to disclose another individual’s personal information to a requester even if doing so would result in an unjustified invasion of the other individual’s personal privacy.

[24] If disclosing another individual’s personal information would not be an unjustified invasion of personal privacy, then the information is not exempt under section 38 (b).

Would disclosure be “an unjustified invasion of personal privacy” under section 38(b)?

[25] Sections 14(1)  to (4)  provide guidance in deciding whether disclosure would be an unjustified invasion of the other individual’s personal privacy. Although the police provide confidential representations regarding section 14(1) (a) of the Act , no party actually relies on the exceptions contained in section 14(1)  as a basis for justifying disclosure and in my view, none of the exceptions in section 14(1)  would apply in the circumstances of the appeal.

Sections 14(2), (3) and (4)

[26] Sections 14(2), (3) and (4) also help in deciding whether disclosure would or would not be an unjustified invasion of personal privacy under section 38 (b). Section 14(4) lists situations where disclosure would not be an unjustified invasion of personal privacy, in which case it is not necessary to decide if any of the factors or presumptions in sections 14(2) or (3) apply. None of the situations in section 14(4) apply to the circumstances of the present appeal and I will therefore not consider them any further in this order.

[27] Otherwise, in deciding whether the disclosure of the personal information in the records would be an unjustified invasion of personal privacy under section 38 (b), the decision-maker [8] must consider and weigh the factors and presumptions in sections 14(2) and (3) and balance the interests of the parties. [9]

Section 14(2)

[28] Section 14(2) lists several factors that may be relevant to determining whether disclosure of personal information would be an unjustified invasion of personal privacy. [10] Some of the factors weigh in favour of disclosure, while others weigh against disclosure.

[29] The list of factors under section 14(2) is not a complete list. The institution must also consider any other circumstances that are relevant, even if these circumstances are not listed under section 14(2). [11]

[30] Each of the first four factors, found in sections 14(2)(a) to (d), if established, would tend to support disclosure of the personal information in question, while the remaining five factors found in sections 14(2) (e) to (i), if established, would tend to support non- disclosure of that information.

Section 14(3)

[31] Sections 14(3)(a) to (h) list several situations in which disclosing personal information is presumed to be an unjustified invasion of personal privacy under section 38 (b).

The sections relied upon by the police

[32] The police rely on sections 14(2)(e), 14(2)(f), 14(2)(g), 14(2)(i) and 14(3)(b) in their representations. The appellant does not refer to any of the factors found in sections 14(2)(a) to (d) that would tend to support disclosure of the personal information in question.

[33] Sections 14(2)(e), 14(2)(f), 14(2)(g), 14(2)(i) and 14(3)(b) read:

(2) A head, in determining whether a disclosure of personal information constitutes an unjustified invasion of personal privacy, shall consider all the relevant circumstances, including whether,

(e) the individual to whom the information relates will be exposed unfairly to pecuniary or other harm;

(f) the personal information is highly sensitive;

(g) the personal information is unlikely to be accurate or reliable;

(i) the disclosure may unfairly damage the reputation of any person referred to in the record.

(3) A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy if the personal information,

(b) 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.

The police’s representations

[34] The police submit that the information at issue falls within the scope of section 14(3) (b) of the Act  because it was compiled and is identifiable as part of an investigation into the possible violation of the law contrary to the Criminal Code  [12] of Canada. They submit that they were investigating allegations of uttering threats, which could have led to criminal charges. They explain that following the investigation, officers determined that there were no grounds to support a criminal offence, but that this does not negate the fact that the occurrence was still investigated in regard to a possible violation of law.

[35] With respect to section 14(2) (e) of the Act , the police submit that if additional information from this record were to be disclosed, the individual to whom the information relates may be exposed unfairly to pecuniary or other harm. They submit that:

… By providing the appellant with the direct quotes of an affected individual that have not been confirmed to be accurate, and because of the appellant’s employment (and subsequent resources), the affected individual’s name and address could be linked to the quotes. The alleged quotes are racist and offensive; if released and associated with the affected party, they could be unfairly targeted and labelled a racist.

Furthermore, the appellant has indicated that he wishes to seek a peace bond against the affected individual. This could be harmful to the affected individual because a peace bond would hinder or limit their ability to travel to specific locations.

[36] The police rely on Order M-1146, where the adjudicator said the following with respect to the release of an individual’s address:

I have considered the rationale for protecting the address of an individual. One of the fundamental purposes of the Act  is to protect the privacy of individuals with respect to personal information about themselves held by institutions (section 1(b)).

In my view, there are significant privacy concerns which result from disclosure of an individual’s name and address. Together, they provide sufficient information to enable a requester to identify and locate the individual, whether that person wants to be located or not. This, in turn, may have serious consequences for an individual’s control of his or her own life, as well as his or her personal safety. This potential result of disclosure, in my view, weighs heavily in favour of privacy protection under the Act .

[37] Although the affected party’s name and address is not at issue in this appeal, the police submit that the rationale in Order M-1146 is applicable and that I should adopt it in this appeal because as a result of his employment, the appellant has the ability to determine the name and address of the affected individual. They submit that if the information in the quotes is disclosed, the appellant “would be able to identify and locate the affected individual, link them to the quotes, and use it maliciously (for example, defamation).”

[38] With respect to the application of section 14(2) (f) of the Act  the police submit that the information at issue is highly sensitive information. They submit that if the personal information were to be released, it is reasonable to expect that it would cause significant personal distress “because the individual is being accused of a crime and the details of this allegation is based on their alleged words as quoted in the record.”

[39] With respect to the application of section 14(2) (g) of the Act , the police submit that the information in the quotes is unlikely to be accurate or reliable. The police submit that:

… The appellant has not provided any proof that the words that have become direct quotes were in fact said by the affected individual; the alleged quotes could be exaggerated or completely fabricated. The words could also have been misunderstood. Regardless, the fashion in which these words are framed in the record imply that they are an exact and correct statement of the affected party, regardless of whether or not the words are in fact accurate. The appellant was the purported target of the alleged quotes; the reliability of the alleged quotes that resulted in him contacting police without any sort of proof or confirmation of their accuracy is questionable.

[40] Finally, with respect to section 14(2) (i) of the Act , the police state that the alleged quotes are offensive and racist, and regardless of their accuracy, the record contains the alleged words of the affected party as direct quotes. The police submit that if the quotes are associated with the affected party, the disclosure of the information may unfairly damage the individual’s reputation since their accuracy has never been determined. In support of their submissions, the police rely on Order MO-2019, where then Assistant Commissioner Brian Beamish wrote:

The harm or damage to the reputation of individuals who may be identified by disclosure would flow from either the alleged commission of unlawful acts by persons accurately identified, or in the case of the “innocent owner”, inaccurate identification as a person charged with criminal wrongdoing. I accept that in those circumstances any harm or damage to reputation would be unfair: in the first situation because the criminal charges have not been subject to proof; and, in the second situation, because of the possibility that “innocent owners” have been misidentified as being charged or in some way involved, with alleged criminal activity.

[41] The police submit that while they understand that the circumstances surrounding Order MO-2019 are different than the issues in this appeal, the withheld information does share some parallels: the affected individual was accused of an alleged commission of an unlawful act by the appellant. The police submit that due to the lack of evidence, the quotes were not confirmed as accurate, and therefore, the police were unable to determine reasonable grounds existed for the alleged offence.

The appellant’s representations

[42] The appellant submits that his employment changed after the incident and that he does not have access to any databases to run plates and check addresses. He states that he has no information to date on the accused by virtue of his employment or otherwise. As indicated in Issue A above, the appellant only seeks a narrow portion of the overall information that was withheld -- the statements that he made to the police.

[43] With respect to section 14(2) (e), the appellant submits that the police’s assertion infers that he would commit a criminal offence to find out the personal information of the affected party and that there is no merit to the claim that he would target the affected party and slander and harass them. He adds that he no longer seeks a peace bond, which, in any event is reserved for a Justice of the Peace to issue.

[44] With respect to section 14(2) (i) and the position of the police that disclosing the information would damage the affected party’s reputation, the appellant states:

• [The police] is the only party to know the accused’s information
• When I submitted these quotes I gave quotes only, I do not know then or now the accused’s identity. He could not be identified by the quotes.
• The accused party’s information will not be released to me, and I’m only seeking the quotes I gave in the report.
• I have no means to identify him, by ‘abuse of my employment’ or otherwise.

Analysis and findings

[45] To establish that the presumption at section 14(3) (b) is applicable, I must be satisfied only that there be an investigation into a possible violation of law. [13] So, even if criminal proceedings were never started against the individual, section 14(3) (b) may still apply. [14] The presumption does not apply if the records were created after the completion of an investigation into a possible violation of law. [15]

[46] Although no charges were laid, I am satisfied that the information in the occurrence report was compiled and is identifiable as part of an investigation into a possible violation of law. Accordingly, I find that section 14(3) (b) applies to it and weighs against disclosure.

[47] I considered but am unpersuaded by the police’s arguments that the factors at 14(2)(e) (unfair exposure to pecuniary or other harm) and 14(2)(i) (damage to reputation) are relevant. In my view, the police’s concerns about the threats posed by the appellant to the affected parted are speculative and insufficient to establish that these factors are relevant to the present circumstances. I also do not accept the police’s arguments about the contingent risk that the appellant will identify the affected party’s address. Again, I find this to be a speculative concern and one that the appellant expressly rejects.

[48] I also considered but am unpersuaded by the police’s arguments that the factor at 14(2)(g) - likely to be inaccurate - is relevant. On the face of the report itself, it is clear that the statement is a statement made by the appellant. It is not a finding of fact or a binding conclusion.

[49] However, I do agree that the factor at section 14(2) (f) - highly sensitive - is relevant. I agree that the statements alleged to have been made by the affected party are highly sensitive and disclosure of even the fact that they were alleged to be said is highly sensitive.

Balancing the interests

[50] As set out above, in deciding whether the disclosure of the personal information in the records would be an unjustified invasion of personal privacy under section 38 (b), I must consider and weigh the factors and presumptions in sections 14(2)  and (3)  and balance the interests of the parties. [16] In this appeal, I found that section 14(3) (b) presumption and the 14(2)(f) factor applies and both weigh in favour of withholding the information. I note that the appellant has not raised or relied upon any section 14(2)  factors weighing in favour of disclosure; he has focused his arguments on his view that it is absurd for the police to withhold from him his own statement.

[51] When I weigh the presumption and the factor that favours withholding with the interests of the parties themselves, I conclude that disclosure of the information at issue would constitute an unjustified invasion of the personal privacy of the affected party and the section 38(b) exemption applies.

[52] That said, because the information at issue is contained within a summary of the appellant’s own statement to police, I have considered whether or not it would be an absurd result to withhold it. I find below that it would be absurd to withhold this information and that disclosing it would not be inconsistent with the purpose of the exemption.

Does the absurd result principle apply?

[53] An institution might not be able to rely on the section 38(b) exemption in cases where the requester originally supplied the information in the record, or is otherwise aware of the information contained in the record. In this situation, withholding the information might be absurd and inconsistent with the purpose of the exemption. [17]

For example, the “absurd result” principle has been applied when:

• the requester sought access to their own witness statement, [18]
• the requester was present when the information was provided to the institution, [19] and
• the information was or is clearly within the requester’s knowledge. [20]

[54] However, if disclosure is inconsistent with the purpose of the exemption, the absurd result principle may not apply. [21]

The representations of the police

[55] The police deny that the absurd result principle has any application in the present appeal. Further they argue that disclosure on this basis would be inconsistent with the purpose of the personal privacy exemption.

[56] The police submit that the information was collected as part of an ongoing investigation into a possible violation of law and by disclosing it to the appellant simply because he provided it to the police would be inconsistent with the purpose of the exemption.

[57] They add:

Although it would be unethical and an abuse of power, due to the appellant’s employment, he has access to resources that would provide him with the affected individual’s name and address. The direct quotes would easily be linked to an individual who allegedly said the four phrases, without ever actually having confirmed whether or not the individual did in fact say the words that have been quoted.

[58] The police submit that in Order MO-2321, Adjudicator Daphne Loukidelis references former Senior Adjudicator David Goodis’ Order PO-2285 and his review of the issue of disclosure and consistency with the purpose of the section 14(3)(b) exemption. The police refer to the following portion of a paragraph in Order PO-2285:

Although the appellant may well be aware of much, if not all, of the information remaining at issue, this is a case where disclosure is not consistent with the purpose of the exemption, which is to protect the privacy of individuals other than the requester. …

[59] The police also rely on paragraph 74 in Order PO-3117, where Adjudicator Colin Bhattacharjee stated:

The IPC has found in previous orders that disclosing records to a requester under the access scheme in Part II of [the provincial equivalent of MFIPPA ] is deemed to be disclosure to the world. [footnote omitted]. [The provincial equivalent of MFIPPA ] does not impose any restrictions or limits on what a requester can do with records disclosed to him or her. Consequently, disclosing the OPP, Coroner’s office and CFS records would move them into the public domain where they can be freely disseminated.

[60] The police submit that after careful consideration of whether withholding portions of information originally supplied by the appellant would be an absurd result, they believe that releasing the information would breach personal privacy.

The appellant’s representations

[61] The appellant states that he is only interested in the information that he provided that was withheld.

[62] He adds:

Ergo, we have reached an absurd result and the institution has embarrassingly failed to provide me my own personal information but also made ridiculous, unsupported, speculative claims about my character and previous employment.

[63] The appellant submits that all he ever wanted was the quotes, “which should never have been redacted in the first place as they did not contain police 10 codes, or personal information that would identify the accused.”

Analysis and finding

[64] In the circumstance of this appeal, I find that the absurd result applies and the withheld information should be disclosed to the appellant. To begin, there is no dispute that the appellant provided this information to the police. He is fully aware of the statement that he made.

[65] I must next consider whether disclosure in this instance would be inconsistent with the purpose of the exemption.

[66] As I understand the police’s argument, they assert that some harm would come to the affected party because there is no restriction on how the appellant may use the information and because of the police’s perception that the appellant has some ill will or intent to cause harm to the affected party. To make this latter point, the police refer to IPC orders in which the absurd result principle was held not to apply because the requester sought access to mixed personal information of individuals who were victims of crime inflicted by the requester.

[67] This is not the situation in the present appeal. To begin, the appellant is the alleged victim in the underlying circumstances. Further, there is no credible basis to suggest that the appellant will or has any intent to cause harm to the affected party. In fact, the appellant has specifically rejected the notion that he would attempt to harm the affected party and he has explained that he has changed jobs and that he does not have access to any databases to identify the affected party’s address. Lastly, I am unclear how disclosure of the specific information at issue would assist with identifying or locating the affected party in any event.

[68] I have acknowledged that the information at issue is sensitive and that it was gathered in the course of a law enforcement investigation. However, it is also clear that the information at issue consists of an allegation made by the appellant about a crime that he says happened to him. I am unpersuaded how disclosure of the information at issue could give rise to any greater risk than the appellant’s own recollection of what he said to police.

[69] In summary, I find that in the circumstances of the appeal before me, disclosing the information to the appellant would not be inconsistent with the purpose of the section 38(b) exemption, and I find that it would be absurd to withhold the requested information from him.

ORDER:

1. I order the police to disclose to the appellant the withheld information contained in quotation marks on the second page of the Occurrence Report (page 1 of the General Report) by disclosing it to him by September 29, 2022 but not before September 24, 2022.
2. In order to ensure compliance with paragraph 1, I reserve the right to require the police to send me a copy of the record as disclosed to the appellant.

Original Signed by:		August 25, 2022
Steven Faughnan
Adjudicator