ORDER PO-4545

Appeal PA23-00130

Ministry of the Solicitor General

August 20, 2024

Summary: An individual requested access to his own records with the Chief Firearms Office (CFO). The ministry, which is in charge of responding to requests for information with the CFO, provided him with some of the records but refused to provide some information stating that disclosure would reveal investigative techniques or procedures (section 49(a), read with section 14(1)(c)), would be an unjustified invasion of another individual’s personal privacy (section 49(b)), or are not responsive to the request. In addition to seeking access to the information that was not provided to him, the individual questions whether the search conducted by the ministry for records was reasonable. In this order, the adjudicator upholds the ministry’s decision not to disclose the information it withheld. She also finds that the ministry’s search for records was reasonable. She dismisses the appeal.

Statutes Considered: Freedom of Information and Protection of Privacy Act , RSO 1990, c. F.31 , sections 2(1)  (definition of “personal information”), 14(1)(c), 24, 49(a) and 49(b).

Orders Considered: Orders PO-2582 and PO-4446.

OVERVIEW:

[1] The appellant submitted a request, under the Freedom of Information and Protection of Privacy Act  (the Act ), to the Ministry of the Solicitor General (the ministry) for all records relating to him with the Chief Firearms Office (CFO).[1]

[2] The ministry located the responsive records and granted the appellant partial access to them. The ministry withheld portions of the records under the discretionary exemptions in sections 49(a), read with sections 14(1)(c) (investigative techniques and procedures) and (l) (facilitate commission of an unlawful act), and 49(b) (personal privacy) of the Act . [2]The ministry also withheld some information as not responsive.

[3] The appellant appealed the ministry’s decision to the Information and Privacy Commissioner of Ontario (the IPC).

[4] During mediation, the ministry obtained consent from the Royal Canadian Mounted Police to disclose additional pages to the appellant and the ministry issued a revised access decision.

[5] The appellant advised that he continues to seek access to all of the withheld information in the records, including the information identified as not responsive. He also believes that additional responsive records ought to exist. As such, reasonable search was added to the scope of the appeal.

[6] As mediation did not resolve the appeal, it was transferred to the adjudication stage of the appeal process, where an adjudicator may conduct a written inquiry under the Act .

[7] The adjudicator initially assigned to the appeal invited and received representations from both the ministry and the appellant.[3] Although the appellant provided representations, his representations did not address the substantive issues in this appeal. While I have considered them, I will not address them explicitly in this order.

[8] The adjudicator also invited three affected parties to submit representations. One affected party provided their consent to the disclosure of their personal information to the appellant. As a result, the ministry issued a revised access decision granting the appellant access to that information. The other two affected parties confirmed they do not consent to the disclosure of any information relating to them.

[9] The appeal was subsequently transferred to me to continue the inquiry. I reviewed the parties’ representations and decided that I did not require further submissions before making my decision.

[10] For the reasons that follow, I find that section 49(a), read with section 14(1)(c), and section 49(b) apply to the portions of the records for which it was claimed. I also find the ministry’s search was reasonable. I dismiss the appeal.

RECORDS:

[11] The records at issue relate to an Application for Renewal of a Firearms Licence for an Individual, filed with the CFO by the appellant.

[12] There are 12 pages of records at issue, consisting of the following:[4]

Page numbers	Type of records
12	Names of applicant and guarantor, and signature block of guarantor
23 to 24	Client application record
26 to 28	Client application record
30 to 31	Client application record
34	Client application record
37	Client application record
38 to 39	Client application record

ISSUES:

1. What information is responsive to the request?
2. Do the records contain “personal information” as defined in section 2(1) and, if so, whose personal information is it?
3. Does the discretionary exemption at section 49(a), allowing an institution to refuse access to a requester’s own personal information, read with the exemptions in sections 14(1)(c) and/or (l) apply to the information at issue?
4. Does the discretionary personal privacy exemption at section 49(b) apply to the information at issue on pages 12 and 37?
5. Did the ministry exercise its discretion under section 49(a), read with section 14(1)(c), and section 49(b)? If so, should I uphold the exercise of discretion?
6. Did the ministry conduct a reasonable search for records?

DISCUSSION:

Issue A: What information is responsive to the request?

[13] The ministry withheld certain portions of the records on the basis that these portions are not responsive to the appellant’s request.

[14] Section 24 of the the Act  imposes certain obligations on requesters and institutions when submitting and responding to requests for access to records. This section states, in part:

(1) A person seeking access to a record shall,

(a) make a request in writing to the institution that the person believes has custody or control of the record, and specify that the request is being made under this Act ;

(b) provide sufficient detail to enable an experienced employee of the institution, upon a reasonable effort, to identify the record;

…

(2) If the request does not sufficiently describe the record sought, the institution shall inform the applicant of the defect and shall offer assistance in reformulating the request so as to comply with subsection (1).

[15] To be considered responsive to the request, records must “reasonably relate” to the request.[5] Institutions should interpret requests generously, in order to best serve the purpose and spirit of the Act . Generally, if a request is unclear, the institution should interpret it broadly rather than restrictively.[6]

[16] The ministry submits that the request was for all records about the appellant that are held by the CFO. It submits that the request contained sufficient detail for the ministry to identify the records that are responsive to the request. The ministry submits that the records were created due to the appellant’s application to renew his firearms licence.

[17] I have reviewed the bottom portions of pages 14 to 40 of the records which the ministry has identified as not responsive to the request. The information withheld pertains to a report number, the page number and the date and time on which the report was “run” searched.

[18] On my review, I find that the information identified as not responsive does not “reasonably relate” to the appellant’s request. It does not relate to the appellant, or to his request for records about himself held by the CFO. It is administrative information. Accordingly, I find that the bottom portions of pages 14 to 40 are not responsive to the appellant’s request and I uphold the ministry’s decision not to disclose this information.

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

[19] In order to decide whether sections 49(a) and 49(b) apply, I must first decide whether the records contain “personal information,” and if so, to whom this personal information relates.

[20] Section 2(1)  of the Act  defines “personal information” as “recorded information about an identifiable individual.” Recorded information is information recorded in any format, including paper and electronic records.[7]

[21] Information is “about” the individual when it refers to them in their personal capacity, meaning that it reveals something of a personal nature about them. Generally, information about an individual in their professional, official, or business capacity is not considered to be “about” the individual if it does not reveal something of a personal nature about them.[8]

[22] 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.[9]

[23] Section 2(1)  of the Act  gives a list of examples of personal information. All of the examples that are relevant to this appeal are set out below:

“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,

(c) any identifying number, symbol or other particular assigned to the individual,

(d) the address, telephone number, fingerprints or blood type of the individual,

(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.

[24] 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.”[10]

[25] It is important to know whose personal information is in the records. If the records contain the requester’s own personal information, their access rights are greater than if it does not.[11] Also, if the records contain the personal information of other individuals, one of the personal privacy exemptions might apply.[12]

[26] The ministry submits that the records at issue contain personal information of the appellant and three affected parties. Specifically, the records contain the names and telephone numbers of these affected parties. The ministry relies on Order PO-4446, where the adjudicator found that similar types of information constituted affected parties’ personal information. It also relies on Order PO-2955, where the adjudicator found that severing the names of affected parties did not remove personal information from the records. The ministry submits that, similar to Order PO-2955, severing the names of the affected parties will not be sufficient to remove personal information from the records.

[27] The ministry also submits that non-named individuals who are referenced in the law enforcement records on pages 27, 28 and 31 could be identifiable, at least potentially to the appellant. It acknowledges that these individuals are not referenced by name, but states that disclosure of the factual information in these records could reveal the identity of the individuals to whom it relates and therefore, that it constitutes personal information.

[28] On my review of the records at issue, I find that they all contain information that qualifies as the personal information of the appellant as well as that of identifiable individuals which would fall under paragraphs (a), (c), (d), and (h) of the definition of “personal information” under section 2(1)  of the Act . Specifically, the records contain the appellant’s address, phone number, date of birth, email address, signature, licence number, and his name, together with other personal information about him. The records also contain the name, address, signature[13] and phone number of the affected parties.

[29] As stated above, the ministry submits that that pages 27, 28 and 31 of the records contain information relating to non-named individuals.[14] Specifically, the ministry claims that the information about these non-named individuals amounts to their personal information because even though these individuals are not named in the records they are identifiable from the information on pages 27, 28 and 31 of the records. Due to my findings on section 49(a), read with section 14(1)(c) below, it is not necessary for me to determine whether these non-named individuals are identifiable individuals and whether the information constitutes their personal information.

[30] As I have found that the records at issue contain the personal information of the appellant along with other identifiable individuals, I will consider the appellant’s access to the records under Part III of the Act.

Issue C: Does the discretionary exemption at section 49(a), allowing an institution to refuse access to a requester’s own personal information, read with the exemptions in sections 14(1)(c) and (l) apply to the information at issue?

[31] The ministry relies on section 49(a), read with the law enforcement exemptions in sections 14(1)(c) and 14(1)(l).

[32] Section 14(1) sets out exemptions for law enforcement records. It allows an institution to refuse to disclose a record if it can demonstrate that certain harms can reasonably be expected to flow from a variety of circumstances related to law enforcement.

[33] As stated above, the ministry relies on sections 14(1)(c), and (l) to deny access. These sections state:

14(1) 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.

[34] Generally, the law enforcement exemptions in section 14(1) must be approached in a sensitive manner, recognizing that it is difficult to predict future events in a law enforcement context.[15] While harm can sometimes be inferred from the records themselves and/or the surrounding circumstances, it not enough, however, for an institution to take the position that the harms under section 14(1) are self-evident from the records and can be proven by simply repeating the description of harms in the Act .[16] How much and what kind of evidence is needed will depend on the type of issue and the seriousness of the consequences.[17]

[35] As the institution refusing access to the records, the ministry bears the burden of proving its exemption claims.[18] It must provide evidence that disclosure of the records could reasonably be expected to result in one or more of the harms in sections 14(1)(c), (i) or (l). It must demonstrate that the risk of harm is real and not just a possibility or speculative,[19] although it does not have to prove that disclosure will, in fact, result in such harm.

Section 14(1)(c): reveal investigative techniques or procedures

[36] Section 14(1)(c) allows the ministry to withhold information if disclosure could reasonably be expected to reveal investigative techniques or procedures that are currently in use. The ministry must show that disclosure of the technique or procedure to the public could reasonably be expected to hinder or compromise its effective use.[20] The exemption normally will not apply where the technique or procedure is generally known to the public.[21] The technique or procedure must be “investigative.”[22]

Representations

[37] The ministry explains that the records were created and used by the CFO, which operates under, and reports to the Ontario Provincial Police. It submits that the records are used for a law enforcement purpose, which is to protect public safety by regulating the circumstances in which someone may be licensed to acquire and possess a firearm. The ministry relies on Orders PO-2582 and PO-4446, which found certain records held by the CFO were law enforcement records subject to the exemptions under section 14.

[38] The ministry submits that section 14(1)(c) applies to the checklists listed in the Client Application records at pages 23, 24, 26, 27, 28, 30, 31, 34 and 39. It submits that it applied this exemption because the ministry is concerned that disclosing these checklists would harm public safety, by undermining the effectiveness of investigative measures that have been put into place pursuant to the Firearms Act [23] to assess applications for firearms licences, and to ensure that only qualified applicants are granted licences to acquire and to possess firearms.

[39] The ministry explains that these checklists are used to assist the CFO in determining whether applicants are eligible to obtain a firearm licence. It submits that disclosure of these records would enable applicants for firearms licences to find out, ahead of time, the types of checks that are conducted for a licence application or renewal, which could thwart this investigative technique by allowing it to be evaded. The ministry relies on Orders PO-2582 and PO-4446, where the adjudicators found that checklists could reasonably be expected to reveal law enforcement investigative techniques currently in use.

[40] The ministry also submits that the contents of the checklists are not well known to the public, and it is not in the public interest for them to be. It submits that disclosure of the checklists would hinder the ability of the CFO to carry out its responsibilities in relation to the Firearms Act . The ministry further submits that disclosing just the records created from conducting the eligibility checks would reveal the information that had been checked, and, therefore, is an extension of the checklist.

Analysis and findings

[41] The purpose of section 14(1)(c) is to protect the effectiveness of law enforcement agencies and their investigative efforts, recognizing that disclosure of specific investigative techniques or procedures could undermine the ability of law enforcement agencies to carry out their duties effectively.

[42] Past IPC orders have found that the CFO qualifies as an agency conducting law enforcement as defined in section 2(1)  of the Act .[24]

[43] The records at pages 23, 24, 30, 31, 34, 38 and 39 are Client Eligibility Checks undertaken by the CFO in relation to the appellant’s firearms licence renewal.

[44] In Order PO-2582, which the ministry relies on, the adjudicator considered a request for access to “client eligibility checks undertaken by the CFO in relation to the appellant’s” own firearms licence. The adjudicator found that:

…the techniques for checking eligibility to obtain or maintain a firearm license, could reasonably be expected to reveal law enforcement investigative techniques currently in use. In my view, disclosure of these techniques could reasonably be expected to hinder or compromise their effective utilization as it would enable individuals to modify his or her behaviour and activities [to] unlawfully obtain or retain firearms. As such, I conclude that disclosure of this information would hinder the ability of the CFO to carry out its responsibilities in relation to the Firearms Act .

[45] I agree with the adjudicator’s finding in Order PO-2582 and find it relevant to my consideration of the records in this appeal.

[46] Based on my review of the client eligibility checks on pages 23, 24, 30, 31, 34, 38 and 39, I find that section 14(1)(c) applies to those listed pages. I accept that disclosure of the client eligibility checks could reasonably be expected to reveal investigative techniques currently in use in law enforcement, which are not known to the public. In my view, disclosure of these techniques could reasonably be expected to hinder or compromise their effective utilization as it would enable individuals to modify their behaviour and activities to unlawfully obtain or retain firearms. As such, I find that disclosure of the client eligibility checks would hinder the ability of the CFO to carry out their responsibilities in relation to the Firearms Act .

[47] I note that the withheld information under the Comment section of the Client Applications at pages 26, 27 and 28 contains information that came from the client eligibility checks. I find that if this information was disclosed it could be expected to reveal the same investigative techniques that I found could be revealed from disclosing the client eligibility checks in pages 23, 24, 30, 31, 34, 38 and 39. As such, I find that the withheld information on pages 26, 27 and 28 are also exempt under section 14(1)(c).

[48] Due to my findings on section 14(1)(c), it is not necessary for me to consider whether the exemption at section 14(1)(l) also applies to pages 23, 24, 26, 27, 28, 30, 31, 34, 38 and 39.

Issue D: Does the discretionary personal privacy exemption at section 49(b) apply to the information at issue on pages 12 and 37.

[49] Under section 49(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. Since the section 49(b) exemption is discretionary, the institution may also decide to disclose the information to the requester.

[50] Sections 21(1) to (4) provide guidance in determining whether disclosure would be an unjustified invasion of personal privacy. If the information fits within any of exceptions in sections 21(1)(a) to (e), disclosure is not an unjustified invasion of personal privacy and the information is not exempt under section 49(b).

[51] Sections 21(2) and (3) also help in determining whether disclosure would or would not be an unjustified invasion of personal privacy under section 49(b). Also, section 21(4) lists situations that would not be an unjustified invasion of personal privacy. If any of paragraphs (a) to (d) of section 21(4) apply, disclosure is not an unjustified invasion of personal privacy and the information is not exempt under section 49(b).

[52] In determining whether the disclosure of the personal information in the records would be an unjustified invasion of personal privacy under section 49(b), this office will consider, and weigh, the factors and presumptions in sections 21(2) and (3) and balance the interests of the parties.[25]

[53] If any of sections 21(3)(a) to (h) apply, disclosure of the information is presumed to be an unjustified invasion of personal privacy under section 49(b). Section 21(2) lists various factors that may be relevant in determining whether disclosure of personal information would constitute an unjustified invasion of personal privacy.[26] The list of factors under section 21(2) is not exhaustive. The institution must also consider any circumstances that are relevant, even if they are not listed under section 21(2).[27]

[54] The ministry relies on the factor favouring non-disclosure in section 21(2)(f) to withhold the personal information on pages 12 and 37 under section 49(b).

[55] Section 21(2)(f) states:

(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,

(f) the personal information is highly sensitive;

[56] The ministry submits that to be considered highly sensitive, there must be a reasonable expectation of significant personal distress if the information is disclosed. It submits that the affected parties’ personal information is contained in these records, which are law enforcement records, and once these records are disclosed they will cease to be subject to any protection from subsequent uses and disclosure.

[57] To support its position, the ministry relies on Order PO-2582, where it was found that CFO records, which included a firearms application, were “highly sensitive” and were protected from disclosure in accordance with section 21(2)(f). Specifically, the adjudicator in Order PO-2582 found that the affected parties’ personal information, such as their names, addresses, dates of birth, telephone numbers, martial status, and their name where it appears with other personal information relating to these individuals, were highly sensitive as disclosure of them could reasonably be expected to cause the affected parties’ significant personal distress. It submits that, similarly, in this appeal disclosure of the affected parties’ personal information, such as their names, address, signature and telephone number, could reasonably be expected to cause them significant personal distress.

[58] In this case, personal information of two affected parties is contained in pages 12 and 37. From my review of the content of the personal information, I accept that given the circumstances of this appeal, disclosure of their personal information would likely cause them significant personal distress. As such, I find that disclosure of the personal information of the affected parties on pages 12 and 37 is highly sensitive. As a result, I give this factor some weight.

[59] In balancing the factors for and against disclosure, I note that section 21(2)(f) weighs against disclosure of the withheld personal information. As noted above, I will give this factor some weight. As no other factors (listed or unlisted) weighing in favour of disclosure have been raised, and from my review, none of them appear to apply, I find that disclosure of the withheld personal information would be an unjustified invasion of the affected parties’ personal privacy. Accordingly, I find that the withheld personal information on pages 12 and 37 of the records is exempt under section 49(b) subject to my finding on the ministry’s exercise of discretion.

Issue E: Did the ministry exercise its discretion under section 49(a) and section 49(b)? If so, should I uphold the exercise of discretion?

[60] The exemptions in sections 49(a) and 49(b) are discretionary and permit an institution to disclose the information subject to the exemption despite the fact that it could withhold it. An institution must exercise its discretion. On appeal, the IPC may determine whether the institution failed to do so.

[61] The IPC may find the institution erred in exercising its discretion where, for example: it does so in bad faith or for an improper purpose; or it takes into account irrelevant considerations or fails to take into account relevant considerations. In either case, the IPC may send the matter back to the institution for an exercise of discretion based on proper considerations.[28] However, the IPC may not substitute its own discretion for that of the institution.[29]

[62] The ministry submits that it has exercised its discretion in not disclosing the records in light of the following three considerations:

• the privacy of affected third party individuals in contact with the CFO should be protected, unless they consent to the disclosure of their personal information;
• the ministry wishes to protect the integrity of techniques, processes, and internal communications used by CFO to regulate firearms, and to protect public safety, which are integral to achieving the statutory mandate of the CFO; and
• the position adopted by the ministry is consistent with its current practice with respect to these kinds of records.

[63] Based on my review of the ministry’s representations and the nature and content of the exempt information, I find that the ministry properly exercised its discretion to withhold the exempt information pursuant to the discretionary exemption at sections 49 (a) and (b) of the Act . I note that the ministry took into account the above listed factors and I am satisfied that they are relevant considerations in the circumstances of this appeal. I am satisfied that it did not act in bad faith or for an improper purpose. Accordingly, I uphold the ministry’s exercise of discretion in deciding to withhold the exempt information pursuant to the sections 49(a) and(b) exemptions.

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

[64] The appellant claims that additional records responsive to his request should exist.

[65] Where a requester claims additional records exist beyond those identified by the institution, the issue to be decided is whether the institution has conducted a reasonable search for records as required by section 17.[30] If I am satisfied the search carried out was reasonable in the circumstances, I will uphold the institution’s decision. If I am not satisfied, I may order further searches.

[66] The Act  does not require the institution to prove with absolute certainty that further records do not exist. However, the institution must provide sufficient evidence to show it has made a reasonable effort to identify and locate responsive records.[31] 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 (responsive) to the request.[32]

[67] 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 such records exist.[33]

Representations, analysis and findings

[68] The ministry submits that it conducted a reasonable search for responsive records. In support of its position, the ministry submitted an affidavit from the Deputy Director of the CFO. The affidavit described the individual involved in the search, where she searched, and the results of her search.

[69] On my review of the parties’ representations, I am satisfied that the ministry conducted a reasonable search for records responsive to the appellant’s request for the following reasons.

[70] The ministry has described the individual who conducted the search, where she searched, and the results of her search. In my view, the ministry’s search was logical and comprehensive. As noted above, 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.[34] I am satisfied that the ministry has provided sufficient evidence to establish this.

[71] I have reviewed the appellant’s representations, and I am not persuaded that he has established a reasonable basis for concluding that further responsive records exist. He has not provided any explanation as to why, despite the ministry’s search, additional records should exist. As noted above, 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 such records exist.[35] In this case, the appellant has not stated why he believes additional records exist.

[72] For the reasons stated above, I find that the ministry conducted a reasonable search for responsive records.

ORDER:

I uphold the ministry’s decision.

Original Signed by:		August 20, 2024
Lan An
Adjudicator