ORDER PO-4559

Appeal PA21-00293

Ministry of the Solicitor General

October 4, 2024

Summary: In a request made under the Freedom of Information and Protection of Privacy Act , an individual asked the ministry for records of the Ontario Provincial Police that relate to him. The ministry provided access to the records in part. It did not disclose some information saying that it contained the personal information of other individuals (section 49(b)), that, if disclosed, could reveal investigative techniques and procedures (section 14(1)(c)) or could facilitate the commission of an unlawful act (section 14(1)(l)). In this order, the adjudicator finds that some of the withheld information should be provided to the appellant. However, he upholds the decision of the ministry not to disclose the remaining information to the appellant.

Statutes Considered: Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. F.31 , as amended, sections 2(1), 2(3), 10(2), 14(1)(c), 14(1)(l), 21(2)(f), 21(3)(b), 49(a) and 49(b).

Cases Considered: Orders PO-2751 and PO-3013.

OVERVIEW:

[1] This order considers the extent of an individual’s right of access to records with the Ontario Provincial Police (OPP) relating to incidents involving him.

[2] The individual made a request to the Ministry of the Solicitor General (the ministry)[1] under the Freedom of Information and Protection of Privacy Act (the Act) for access to the following information, which the ministry characterizes as relating to allegations of domestic conflict and abuse:

Ontario Provincial Police (OPP) police reports and/or occurrence/incident reports and any drafts thereof: [list of ten specified report numbers], along with any other similar reports which may include and/or reference me [the requester]. Such reports may have been generated by the OPP detachment’s police staff and/or other civilian staff in the [specified office] and/or call dispatch staff (call takers).

[3] The ministry identified responsive records, which included materials it received from another police service and granted partial access to them. It relied on section 49(a) (discretion to refuse to disclose requester’s own information), read with sections 14(1)(c) (reveal investigative techniques and procedures), 14(1)(l) (facilitate commission of an unlawful act) and 15(b) (relations with other governments) as well as section 49(b) (personal privacy) to deny access to the portions it withheld. The ministry also took the position that some information in the records was not responsive to the request.

[4] The requester (now the appellant) appealed the ministry’s decision to the Information and Privacy Commissioner of Ontario (the IPC). At mediation the appellant confirmed with the mediator that he is only seeking access to information about himself or his children and that he is not seeking access to anyone else’s personal information, police or law enforcement codes, or any information that the police identified as not responsive to the request. Accordingly, this order will not consider that information.

[5] As the appeal was not resolved, it was moved to the adjudication stage of the appeal process where an adjudicator may decide to conduct an inquiry under the Act.

[6] I began the inquiry by seeking representations from the ministry. In its representations, the ministry advised that it was no longer relying on section 15(b) of the Act to withhold any information. Accordingly, section 15(b) is no longer at issue in the appeal. The appellant provided short submissions in answer to a Notice of Inquiry and the ministry’s representations. In those submissions, the appellant does not specifically address the issues on appeal but notes that without access to the records he cannot request the correction of erroneous material, statements and allegations. He requests disclosure to enable him to address and correct any “possible false narratives.”

[7] In this order, I partially uphold the ministry’s decision. I find that some of the information it withheld under sections 49(a) and 49(b) is not exempt and I order the ministry to disclose it to the appellant. I uphold the decision of the ministry to withhold other information.

RECORDS:

[8] At issue in this appeal is the undisclosed information sought by the appellant in the responsive records, which include Occurrence Reports, General Reports, Supplementary Occurrence Reports and other police records.

ISSUES:

1. Do the records contain “personal information” as defined in section 2(1) and, if so, whose personal information is it?
2. Does the discretionary exemption at section 49(a) (discretion to refuse requester’s own personal information), read with sections 14(1)(c) and/or 14(1)(l) of the Act, apply to the information at issue?
3. Does the discretionary personal privacy exemption at section 49(b) of the Act apply to the information at issue?
4. Did the ministry exercise its discretion under sections 49(a) and 49(b)? If so, should I uphold the exercise of discretion?

DISCUSSION:

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

[9] The ministry withheld information on the basis that it is exempt from disclosure under section 49(b) and/or under section 49(a), read with the law enforcement exemptions in sections 14(1)(c) and/or 14(1)(l). For sections 49(a) and (b) to apply the records must contain the “personal information” of the appellant. For section 49(b) to apply the records must contain the “personal information” of both the appellant and another individual.

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

[11] 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.[3]

[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.[4]

[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 or marital or family status of the individual,

(b) information relating to the education or the medical, psychiatric, psychological, criminal or employment history of the individual or information relating to financial transactions in which the individual has been involved,

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

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

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

(f) correspondence sent to an institution by the individual that is implicitly or explicitly of a private or confidential nature, and replies to that correspondence that would reveal the contents of the original correspondence,

(g) the views or opinions of another individual about the individual, and

(h) the individual’s name if it appears with other personal information relating to the individual or where the disclosure of the name would reveal other personal information about the individual.

[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.”[5]

Representations

[15] The ministry submits that the records at issue relate to incidents involving allegations of domestic conflict and abuse.

[16] The ministry says that the records contain identifying information which would reveal the home addresses, ages, gender and phone numbers of identifiable individuals other than the appellant. In addition, the ministry says that disclosing the withheld information would reveal the communications between the police and identifiable individuals other than the appellant, as well as their opinions.

[17] The ministry submits that due to the subject matter of the records, the appellant’s personal information is so intertwined with that of other individuals that they can expect to be identified if the information is disclosed, even if their names and other identifiers are removed.

Analysis and findings

[18] Based on my review of the records, I find that all of them contain the personal information of the appellant, as they relate to incidents involving him and reveal other personal information about him (paragraph (h) of the definition of “personal information” in section 2(1)). I also find that the records contain the personal information of other identifiable individuals, including their addresses and telephone numbers (paragraph (c)), their personal views and opinions (paragraph (e)) and their names, along with other personal information relating to them (paragraph (h)). I find that in many instances, the personal information of the appellant and other identifiable individuals is so intertwined that it can not be separated.

[19] According to section 2(3) of the Act, personal information does not include the name, title, contact information or designation of an individual that identifies the individual in a professional or official capacity. The ministry severed the names of certain police officers involved in various incidents relating to the appellant. It also severed the names and/or titles of some individuals who provided information about the appellant in their professional capacity, whether as a police officer or probation officer. As set out above, although professional information can consist of personal information if it reveals something of a personal nature about an individual, this information does not. I therefore find that it is professional information and not personal information.

[20] In summary, I find that the records contain the personal information of the appellant and other identifiable individuals. I also find that the records contain professional information. In most instances, the personal information of the appellant and other identifiable individuals is so intertwined that it cannot be separated.

[21] In accordance with the above, I find that the information that I have highlighted in green on pages 2, 3, 10, 11 and 14 is either the personal information of the appellant alone or is information about the appellant alone together with information about an individual in their professional or official capacity, only. As this information does not qualify as another identifiable individual’s personal information, unless it falls within the scope of another exemption, it should be disclosed to the appellant.

Issue B: Does the discretionary exemption at section 49(a), read with sections 14(1)(c) and/or 14(1)(l) of the Act, apply to the information at issue?

[22] The ministry claims that the bulk of the information at issue qualifies for exemption under sections 49(a) read with sections 14(1)(c) and/or 14(1)(l).

[23] Section 49(a) of the Act reads:

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

where section 12, 13, 14, 14.1, 14.2, 15, 15.1, 16, 17, 18, 19, 20 or 22 would apply to the disclosure of that personal information.

[24] The discretionary nature of section 49(a) recognizes the special nature of requests for one’s own personal information and the desire of the Legislature to give institutions the power to grant requesters access to their own personal information.[6]

[25] In this case, the ministry relies on section 49(a) read with sections 14(1)(c) and/or 14(1)(l) of the Act, which provide:

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.

[26] The law enforcement exemption must be approached in a sensitive manner, because it is hard to predict future events in the law enforcement context, and so care must be taken not to harm ongoing law enforcement investigations.[7]

[27] The parties resisting disclosure of a record cannot simply assert that the harms under section 14 are obvious based on the record. They must provide detailed evidence about the risk of harm if the record is disclosed. While harm can sometimes be inferred from the records themselves and/or the surrounding circumstances, parties should not assume that the harms under section 14 are self-evident and can be proven simply by repeating the description of harms in the Act.[8]

[28] Sections 14(1)(c) and 14(1)(l) apply where a certain event or harm “could reasonably be expected to” result from disclosure of the record. Parties resisting disclosure must show that the risk of harm is real and not just a possibility.[9] However, they do not have to prove that disclosure will in fact result in harm. How much and what kind of evidence is needed to establish the harm depends on the context of the request and the seriousness of the consequences of disclosing the information.[10]

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

[29] In order to meet the “investigative technique or procedure” test in section 14(1)(c), the institution must show that disclosure of the technique or procedure to the public could reasonably be expected to be expected to interfere with its effective use.

[30] The technique or procedure must be “investigative”; that is, it must be related to investigations. The exemption will not apply to techniques or procedures related to “enforcing” the law.[11]

Section 14(1)(l): facilitate commission of an unlawful act or hamper the control of crime

[31] For section 14(1)(l) to apply, there must be a reasonable basis for concluding that disclosure of the information at issue could be expected to facilitate the commission of an unlawful act or hamper the control of crime.

Representations

[32] The ministry submits that the records contain information that is subject to section 49(a) read with section 14(1)(c) because disclosing them could reasonably be expected to reveal investigative techniques and procedures police use as part of their investigations. The ministry emphasises, in particular, the checklists of risk factors that the OPP (and potentially other law enforcement agencies) use to evaluate the threat posed by domestic violence. It submits that the checklists are not in the public domain.

[33] The ministry also submits that it applied section 49(a) read with section 14(1)(l) of the Act to information in the records in order to protect the integrity of its law enforcement investigations, the working relationships with other law enforcement agencies, and out of concern for the privacy and well-being of the individuals other than the appellant.

[34] The ministry submits that the OPP is a law enforcement agency, and the records at issue are operational records that were created or collected by the OPP during an OPP law enforcement investigation, which could have resulted in charges.

[35] The ministry further submits that responsive information in the records relates to individuals identified as being either complainants, or potentially victims of crime. The ministry submits that members of the public seek the assistance of, or cooperate with the police, on the understanding that the information they provide is often highly sensitive, and for that reason alone, would never be disclosed in the manner contemplated by this appeal.

[36] It says that it is concerned that the disclosure of the records would discourage members of the public, including victims of crime, from seeking police assistance or being cooperative with the police out of concern that the confidentiality of their information will not be safeguarded. The ministry submits that such an outcome could be expected to either facilitate the commission of crime or hamper its control.

[37] The ministry also takes the position that the records contain confidential law enforcement information that members of the OPP use for the purpose of documenting their investigations. It says that having this information on record is of critical importance to enable officers to be prepared when they are summonsed to deal with individuals with whom they have had prior interactions.

[38] The ministry states that it is concerned that members of the OPP will be less likely to record information and to communicate candidly with one another, if the records that they create are more likely to be disclosed in the manner contemplated by this appeal. The ministry submits that this outcome would have the subsequent result of facilitating crime or hampering its control.

Analysis and finding

[39] The section 14(1)(c) exemption normally will not apply where the technique or procedure is generally known to the public.[12] The Adjudicator in Order PO-2751 stated that:

… The fact that a particular technique or procedure is generally known to the public would normally lead to the conclusion that its effectiveness would not be hindered or compromised by disclosure and, accordingly, that the technique or procedure in question is not within the scope of section 14(1)(c).

[40] In Order PO-3013 the adjudicator found that the type of information that appears in the checklists at pages 8 to 9, 25 to 28, 65 to 67, 76 to 78, 90 to 92 and 99 to 101 was an investigative technique not known to the public and fell within the scope of section 14(1)(c). I draw the same conclusion here. In my view disclosing the withheld information on those pages could reasonably be expected to reveal investigative techniques and procedures currently in use or likely to be used in law enforcement, that are not generally known to the public.

[41] The ministry also argues that the bulk of the remaining information at issue falls within the scope of section 14(1)(l) because if it is disclosed, members of the public, including victims of crime, would be discouraged from seeking police assistance or being cooperative with the police out of concern that the confidentiality of their information will not be safeguarded. The ministry is also concerned that members of the OPP will be less likely to record information and to communicate candidly with one another, if the records that they create are more likely to be disclosed in the manner contemplated by this appeal.

[42] With respect, I find that the scope of the application of section 14(1)(l) suggested by the ministry is far too broad. Taken to its logical conclusion this would mean that this exemption would apply to all information provided in a criminal investigation, a result that could not have been contemplated or intended by the legislature in enacting this statutory provision.[13]

[43] I also find that the evidence tendered by the ministry in this appeal with respect to the application of section 14(1)(l) is highly speculative. The keeping and exchange of written records is an integral part of policing, and I am not satisfied that disclosing the portions of the records at issue in this appeal that I have found should be disclosed would interfere with that practice.

[44] Finally, I note that the highlighted information on pages 3, 10, 11 and 14 relates only to the appellant, was provided by the appellant himself or would be within his knowledge. In my view, the ministry has not provided sufficient evidence to establish that disclosure of this limited information would dissuade public cooperation with the OPP, or otherwise facilitate the commission of unlawful acts or hamper the control of crime. Accordingly, I find that section 49(a) read with sections 14(1)(c) and/or 14(1)(l) does not apply to this information.

[45] In summary, I have found that section 49(a) read with section 14(1) applies to the withheld information on pages 8 to 9, 25 to 28, 65 to 67, 76 to 78, 90 to 92 and 99 to 101. I find that no other information falls within the scope of section 49(a) read with sections 14(1)(c) or 14(1)(l).

Issue C: Does the discretionary personal privacy exemption at section 49(b) of the Act apply to the information at issue?

[46] Under the section 49(b) exemption, if a record contains the personal information of both the appellant and another individual, the institution may refuse to disclose the other individual’s personal information to the appellant if disclosing that information would be an “unjustified invasion” of that individual’s personal privacy. If disclosing another individual’s personal information would not be an unjustified invasion of personal privacy, then the information is not exempt under section 49(b).[14]

[47] Sections 21(1) to (4) provide guidance in determining whether the unjustified invasion of personal privacy threshold under section 49(b) is met:

• if the information fits within any of paragraphs (a) to (e) of section 21(1), disclosure is not an unjustified invasion of personal privacy and the information is not exempt under section 49(b);
• section 21(2) lists “relevant circumstances” or factors that must be considered;
• section 21(3) lists circumstances in which the disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy; and privacy; and
• section 21(4) lists circumstances in which the disclosure of personal information does not constitute an unjustified invasion of personal privacy, despite section 21(3).

[48] There is no evidence before me to suggest that the exceptions in section 21(1)(a) to (e) or the circumstances in section 21(4) apply to the personal information in the records. I find that none of these provisions is applicable in the circumstances of this appeal and will not consider them.

[49] The ministry claims that section 49(b) applies to information in all the records at issue. It submits that the presumption against disclosure at section 21(3)(b) and the factor at section 21(2)(f), weighing against disclosure, are applicable in the circumstances.

[50] Those sections of the Act read:

21(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;

21(3) A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy where 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;

Representations

[51] The ministry submits that all the records fall within the section 21(3)(b) presumption because OPP officers collected or created the records based on a belief that an offence had been committed in Ontario, which could have led to charges under the Criminal Code .[15]

[52] The ministry submits that some of the records were generated by the OPP through its own law enforcement activities, but others contain references to police investigations in another jurisdiction involving the appellant. The ministry submits that disclosing the withheld information, which it says is intertwined with the personal information of the appellant, would constitute an unjustified invasion of the privacy of identifiable individuals other than the appellant.

[53] The ministry also submits that the factor set out at section 21(2)(f) is a relevant consideration because there is a reasonable expectation of significant personal distress if the personal information in the records is disclosed.[16]

Analysis and Findings

[54] The section 21(3)(b) presumption against disclosure requires only that there be an investigation into a possible violation of law.[17] So, even if criminal proceedings were never started, section 21(3)(b) may still apply.[18]

[55] The ministry submits that it withheld information in the records on the basis that its disclosure would presumptively constitute an unjustified invasion of personal privacy under section 21(3)(b). Based on my review of the records, the withheld personal information was compiled and is identifiable as part of investigations into possible violations of the law. I find the section 21(3)(b) presumption applies to the personal information of other individuals contained in these records and weighs against its disclosure.

[56] Section 21(2)(f) is intended to weigh against disclosure when the evidence shows that the personal information is highly sensitive. To be considered “highly sensitive,” there must be a reasonable expectation of significant personal distress if the information is disclosed.[19] For example, personal information about witnesses, complainants or suspects in a police investigation may be considered highly sensitive.[20]

[57] The ministry submits that the disclosure of other individuals’ personal information contained in the records could be expected to cause them significant distress.

[58] I agree with the ministry that the disclosure of the personal information of these individuals could reasonably cause them significant distress based on the context in which their information was collected. Although the records also relate to the appellant, the withheld information is highly sensitive personal information of others that was compiled as part of police investigations into possible violations of law. Based on the context in which this information was gathered and on the fact that some of the individuals in question interacted with the police agencies as complainants or witnesses, I find that section 21(2)(f) applies in favour of non-disclosure.

Weighing the presumption and factor

[59] In deciding whether the disclosure of the personal information in the records would be an unjustified invasion of personal privacy under section 49(b), I must consider and weigh the applicable section 21(2) factors and section 21(3)(b) presumptions and balance the interests of the parties.[21]

[60] I have found that the factor at section 21(2)(f) weighs in favour of non-disclosure, as does the presumption at section 21(3)(b). None of the parties have claimed, nor do I find that any of the factors favouring disclosure apply. Weighing the factor and presumption, and balancing the interests of the parties, I find that disclosure of the information at issue would amount to an unjustified invasion of privacy of the identifiable individuals other than the appellant. Furthermore, I find that in the circumstances of this appeal and based on the nature and content of the records the absurd result principle does not apply to the information at issue.[22]

[61] Accordingly, subject to my consideration of the ministry’s exercise of discretion below, I find that the personal information for which section 49(b) has been claimed is exempt from disclosure under that section.

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

[62] The exemptions in sections 49(a) and 49(b) are discretionary and permit the ministry to disclose information, despite the fact that it could be withheld. On appeal, the IPC may review the ministry’s decision in order to determine whether it exercised its discretion and, if so, to determine whether it erred in doing so.[23]

[63] The ministry provided submissions in support of its decision to exercise discretion not to disclose the information which is exempt under sections 49(a) and 49(b) to the appellant. It states that in properly exercising its discretion it considered the public policy interest in safeguarding the privacy of victims of crime, the concern that disclosure of the records would jeopardize public confidence in the OPP in light of the public’s expectation that information they provide to the police during a law enforcement investigation will be kept confidential, and its usual practices.

[64] As set out in the Overview, the appellant takes the position that without being granted access to the withheld information he is unable to request the correction of any “erroneous material, statements and allegations.” He requests disclosure to enable him to address and correct any “possible false narratives.”

[65] In considering all of the circumstances surrounding this appeal, I am satisfied that the ministry has taken the appropriate factors into consideration in exercising its discretion and has not erred in the exercise of its discretion in deciding not to disclose the unhighlighted information in the records under sections 49(a) and/or 49(b) of the Act.

[66] Finally, I have also considered whether the information that I have found to be subject to sections 49(a) and/or 49(b) can be severed and portions of the withheld information be provided to the appellant. Section 10(2) of the Act obliges the institution to disclose as much of any responsive record as can be reasonably severed without disclosing information which is exempt. In my view, the records cannot be further severed without disclosing information that I have found to be exempt. Furthermore, an institution is not required to sever the record and disclose portions where to do so would reveal only “disconnected snippets”, or “worthless” or “meaningless” information, which any other severance would result in here.[24]

ORDER:

1. I order the ministry to disclose to the appellant the information that I have highlighted in green on a copy of the pages of the records that I have provided to the ministry together with a copy of this order by sending it to him by November 8, 2024.
2. In order to ensure compliance with paragraph 2, I reserve the right to require the ministry to send me a copy of the pages of records as disclosed to the appellant.
3. In all other respects I uphold the ministry’s decision.

Original signed by:		October 4, 2024
Steven Faughnan
Adjudicator