ORDER MO-4642

Appeal MA21-00051

Niagara Regional Police Services Board

April 7, 2025

Summary: This appeal deals with an access request for all records relating to the police’s use of Clearview AI technology during a specified period of time. The police provided access to records in part to the individual who made the request, but denied access to other records, claiming a number of exemptions as well as the employment or labour relations exclusion under section 52(3)  of the Municipal Freedom of Information and Protection of Privacy Act .

The requester raised the public interest in the disclosure of the records. In this order, the adjudicator finds that the exclusion in section 52(3) 3 applies to one record, and the exemptions in sections 6(1)(b), 8(1)c), 9(1)(b) and 14(1) apply to some records but not others. The adjudicator also finds that the public interest override does not apply to the information the adjudicator finds exempt. The adjudicator orders the police to disclose certain records to the requester.

Statutes Considered: Municipal Freedom of Information and Protection of Privacy Act , R.S.O. 1990, c. M.56 , as amended, sections 2(1) (definition of personal information), 6(1)(b), 8(1)(c), 8(1)(l), 9(1)(b), 14(1), 16, 17 and 52(3)3.

Orders Considered: MO-1913, MO-1993, MO-2660, MO-3466, MO-4474, MO-4497, MO-4599 and PO-4283.

Cases Considered: Ontario (Solicitor General) v. Ontario (Assistant Information and Privacy Commissioner) (2001), 55 O.R. (3d) 355 (C.A.), leave to appeal refused [2001] S.C.C.A. No. 507; Ontario (Ministry of Correctional Services) v. Goodis, (2008), 89 O.R. (3d) 457, [2008] O.J. No. 289 (Div. Ct.).

OVERVIEW:

[1] This order disposes of the issues raised in this appeal of an access decision made by the Niagara Regional Police Services Board (the police). The police received an access request under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for all documents – including but not limited to receipts, correspondence (sent and received), briefs, memoranda, solicitations for software trial(s) and instructions – pertaining to the use of facial recognition technology by the police and/or any of its members between January 1, 2017 and the date of the request.[1]

[2] The police located nine pages of records and issued an access decision to the requester. The police denied access to the records, claiming the application of the discretionary exemption in section 6(1)(b) (closed meeting) of the Act.

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

[4] There were two rounds of mediation. During the first mediation, the appellant stated that the police’s search was unreasonable and that additional records, such as solicitation emails from software companies, should exist.

[5] The police conducted another search for records, and advised the mediator that no further records exist in response to the appellant’s request. The appellant maintained his view that additional responsive records should exist and therefore search remained at issue in the appeal. The appellant also advised that he objected to the application of the discretionary exemption in section 6(1)(b) to the records at issue. The police confirmed their position that that exemption applied to the nine pages of records at issue.

[6] The file moved to the adjudication stage of the appeals process, where an adjudicator may conduct an inquiry. During the inquiry, the police identified additional records responsive to the request and issued a supplementary decision to the appellant, providing partial disclosure of 104 pages of responsive records. Sixty pages were provided in full, and 44 pages were provided in part. The police advised that information in the records was withheld either in whole or in part under the discretionary exemptions in sections 6(1)(b) (closed meeting) and 8(1) (law enforcement), the mandatory exemption in section 14(1) (personal privacy) and the employment or labour relations exclusion in section 52(3) of the Act. The appellant confirmed with the adjudicator his continued interest in the disclosure of the records.

[7] The appeal was transferred back to mediation for a second round, given the disclosure of further records and the addition of new exemptions being claimed.

[8] During the second mediation, the police conducted an additional search and sent the appellant an index of records listing 305 records they located as a result of this further search. The police also issued a revised decision clarifying the sections of the Act they were relying on to deny access to the remaining information: the discretionary exemptions in sections 6(1)(b) (closed meeting), 8(1)(c) (reveal investigative techniques and procedures), 8(1)(l) (facilitate commission of an unlawful act) and 9(1)(b) (relations with other governments); the mandatory exemption in section 14(1) (personal privacy); and the exclusion in section 52(3) (employment or labour relations exclusion). In addition, the police identified a number of records that were duplicates of other records and a number that were not responsive to the request.

[9] The appellant advised the mediator that he was not seeking access to the duplicate records and that search was no longer at issue in this appeal. The appellant also narrowed the number of records he is seeking access to in the form of an annotated index, which was shared with the police.

[10] The police subsequently issued a second revised decision, advising that they reviewed all of the non-responsive records that had been identified by the appellant and advised that they were disclosing some of these records, in part. The remaining portions of those records were denied under sections 52(3), 14(1), 8(1)(c) and 8(1)(l). The police also provided the appellant with an updated version of the index of records, including further details as to why the records were identified as non-responsive.

[11] At the conclusion of the second mediation, the appellant confirmed that the sections claimed by the police remain at issue, and that he was of the view that there is a compelling public interest in the records denied under section 9(1)(b) and 14(1). As a result, the public interest override in section 16 was added as an issue in this appeal. By the conclusion of mediation, the police had disclosed 145 pages of records to the appellant with 600 pages of records remaining at issue.[2]

[12] The file was returned to the adjudication stage of the appeals process and assigned to me to complete the inquiry. I sought and received representations from the police[3] and the appellant, which were shared. Portions of the police’s representations were withheld from the appellant because they met the IPC’s confidentiality criteria.

[13] For the reasons that follow, I find that:

• The records the police claim are not responsive to the request are in fact not responsive, with the exception of two records,
• The labour relations and employment exclusion in section 52(3)3 applies to one record,
• Some of the records contain the personal information of identifiable individuals, and these records are exempt from disclosure either in whole or in part under the mandatory personal privacy exemption in section 14(1),
• The closed meeting exemption in section 6(1)(b) applies to some of the records,
• The law enforcement investigative techniques and procedures exemption in section 8(1)(c) applies to some of the records,
• The relations with other governments exemption in section 9(1)(b) applies to the record for which it was claimed,
• The police properly exercised their discretion, and
• The public interest override in section 16 does not apply to the information exempt under sections 9(1)(b) and 14(1).

RECORDS:

[14] There are approximately 600 pages of records remaining at issue. The records in question are: 1, 2, 5, 6, 10, 24, 31, 32, 36, 37, 39, 40, 42, 52, 53, 65, 66, 68-71, 72, 74, 77, 81, 82, 84, 88, 90-93, 104, 106, 109-111, 116-118, 120-123, 129, 132-134, 136, 138, 143, 144, 146, 148, 150, 152-155, 168-171, 173, 175, 176, 179, 187, 189, 190, 192, 193-200, 206, 207, 212, 215, 219, 221, 222, 224, 226-228, 231, 242, 250, 255, 257-260, 263-265, 267, 268, 272, 273, 275, 278, 292, 297 and 299-301.

[15] The records consist of email correspondence, memoranda, forms, other correspondence, conference materials and agendas.

ISSUES:

A. Which records are responsive to the request?

B. Does the section 52(3)3 exclusion for records relating to labour relations or employment matters apply to the records?

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

D. Does the mandatory personal privacy exemption at section 14(1) apply to the personal information at issue?

E. Does the discretionary exemption at section 6(1)(b) relating to closed meetings apply to the records?

F. Does the discretionary exemption at sections 8(1)(c) and 8(1)(l) related to law enforcement activities apply to the records?

G. Does the mandatory exemption at section 9(1)(b) for information received from other governments apply to record 52?

H. Did the police exercise their discretion under sections 6(1)(b), 8(1)(c) and 8(1)(l)? If so, should the IPC uphold the exercise of discretion?

I. Is there a compelling public interest in disclosure of the records that clearly outweighs the purpose of the sections 9(1)(b) and 14(1) exemptions?

DISCUSSION:

Issue A: Which records are responsive to the request?

[16] The police claim that records 24, 31, 37, 40, 42, 69-72, 74, 81, 82, 88, 90, 91, 93, 104, 106, 109, 117, 120, 133, 134, 138, 143, 144, 154, 155, 169-171, 173, 175, 187, 189, 192-200, 206, 215, 219, 226, 227, 242, 255, 257-260, 263, 268, 297 and 299-301 are not responsive to the appellant’s access request.

[17] To be considered responsive to the request, records must “reasonably relate” to the request.[4] Institutions should interpret requests liberally, in order to best serve the purpose and spirit of the Act. Generally, if there is ambiguity in the request, this should be resolved in the requester’s favour.[5]

Representations

[18] The police submit that they identified certain records as not being responsive to the access request because they did not contain any information regarding facial recognition technology being used by the police and/or its members.

[19] The appellant submits that the fact the police included these records in their Index of Records would lead one to “rightfully assume” that if they were not relevant to the request, then they would not have been included in the index in the first place.

[20] In reply, the police submit that the records that are not responsive to the access request were included in the index for the following reasons:

• Police officers who provided records included all records that contained the words “Clearview AI” and “facial recognition,”
• Some of these records did not contain any information about facial recognition technology being used by the police and/or its members, and
• During the time the index was created, there were several staffing changes in the FOI unit. As a result, due to staff inexperience, records that were deemed not responsive were included in the index.

Analysis and findings

[21] As previously stated, the appellant’s access request was for all records, including but not limited to receipts, correspondence, briefs, memoranda, solicitations for software trials and instructions pertaining to the use of facial recognition technology by the police and/or any of its members from January 1, 2017 to the date of the request.

[22] I have reviewed the records, and I find that all of the records the police claim are not responsive to the access request – with the exception of records 69 and 144 – are not reasonably related to the access request and I therefore uphold the police’s decision on this point.

[23] I find that the majority of these records are not responsive to the access request for the following reasons:

• They do not contain any information about the use of facial recognition technology, or
• They refer to the use of facial recognition technology, but not by the police or any of its members, or
• They consist of conference materials or meeting notes where only general references to facial recognition technology are made, and do not refer to the use of the technology by the police or its members.

[24] As a result, I find that records 24, 31, 37, 40, 42, 70-72, 74, 81, 82, 88, 90, 91, 93, 104, 106, 109, 117, 120, 133, 134, 138, 143, 154, 155, 169-171, 173, 175, 187, 189, 192-200, 206, 215, 219, 226, 227, 242, 255, 257-260, 263, 268, 297 and 299-301 are not responsive to the request and I will not address these records any further.

[25] While the police did not identify further records as being not responsive to the access request, I find on my review of the records during this inquiry that records 207, 272, 275, 278 and 292 in whole, and records 136, 221, 228, 231 and 273 in part, are not responsive to the appellant’s access request because they do not reasonably relate to the subject matter of the request. As a result, I have removed them from the scope of the appeal.

[26] Conversely, I find that records 69 and 144 are responsive to the appellant’s access request. Record 69, I find, is addressed to all police services in the province - including the police in this appeal – and addresses the use of Clearview AI’s facial recognition technology by the police. I find that record 144 is an internal police email, the subject matter of which is the use of Clearview AI. The police have not claimed any exemptions with respect to records 69 and 144. As a result, I will order the police to issue an access decision to the appellant with respect to these records.

Issue B: Does the section 52(3)3 exclusion for records relating to labour relations or employment matters apply to the records?

[27] The police claim that records 36, 39, 53, 65, 92, 111, 116, 118, 121, 129, 136, 150, 152, 153, 190 and 264 are excluded from the scope of the Act under section 52(3)3. Section 52(3)3 of the Act excludes certain records held by an institution that relate to labour relations or employment matters. If the exclusion applies, the record is not subject to the access scheme in the Act, although the institution may still choose to disclose it outside of the Act’s access scheme.[6]

[28] The purpose of this exclusion is to protect some confidential aspects of labour relations and employment-related matters.[7]

[29] The police are claiming the application of section 52(3)3, which states:

Subject to subsection (4), this Act does not apply to records collected, prepared, maintained or used by or on behalf of an institution in relation to any of the following:

3. Meetings, consultations, discussions or communications about labour relations or employment related matters in which the institution has an interest.

[30] If section 52(3) applies to the records, and none of the exceptions found in section 52(4) applies, the records are excluded from the scope of the Act. If section 52(3) applied at the time the record was collected, prepared, maintained or used, it does not stop applying at a later date.[8]

[31] The type of records excluded from the Act by section 52(3) are those relating to matters in which the institution is acting as an employer, and terms and conditions of employment or human resources questions are at issue.[9]

[32] For the collection, preparation, maintenance or use of a record to be “in relation to” one of the three subjects mentioned in this section, there must be “some connection” between them.[10] The "some connection" standard must involve a connection relevant to the scheme and purpose of the Act, understood in their proper context.

[33] The term “labour relations” refers to the collective bargaining relationship between an institution and its employees, as governed by collective bargaining legislation, or to similar relationships. The meaning of “labour relations” is not restricted to employer-employee relationships.[11]

[34] For section 52(3)3 to apply, the institution must establish that:

1. the records were collected, prepared, maintained or used by an institution or on its behalf;
2. this collection, preparation, maintenance or use was in relation to meetings, consultations, discussions or communications; and
3. these meetings, consultations, discussions or communications are about labour relations or employment-related matters in which the institution has an interest.

[35] With respect to the third condition, the records are excluded only if the meetings, consultations, discussions or communications are about labour relations or “employment-related” matters in which the institution has an interest. The phrase “in which the institution has an interest” means more than a “mere curiosity or concern,” and refers to matters involving the institution’s own workforce.[12]

Representations

[36] The police submit that the records are subject to the exclusion because they relate to matters in which they are acting as an employer, and the terms and conditions of employment or human resource questions were at issue. The police further submit that the exception in section 52(4) does not apply. The police also provided confidential representations which met the IPC’s confidentiality criteria. I do not set out these representations in this order, but I took them into account in making my finding.

[37] The appellant submits that the police have not justified the “wholesale” withholding of relevant records, nor have they provided sufficient evidence to support their section 52(3)3 claim.

Analysis and Findings

[38] I find that the exclusion in section 52(3)3 applies to record 65, which is a compilation of an officer’s annual work achievements. I find that it is excluded from the scope of the Act under section 52(3)3 because all three parts of the three-part test have been met. I find that this record, which is a communication that was prepared for the police by an officer, is in relation to labour relations in which the police have an interest. In particular, I find that this record refers to matters involving the police’s own workforce, including material directly forming part of an officer’s performance appraisal.

[39] In Ontario (Solicitor General) v. Ontario (Assistant Information and Privacy Commissioner)[13], the Ontario Court of Appeal stated that section 65(6)3:

. . . deals with records relating to a miscellaneous category of events “about labour relations or employment-related matters in which the institution has an interest”. Having regard to the purpose for which the section was enacted [footnote omitted], and the wording of the subsection as a whole, the words, “in which the institution has an interest” in subclause 3 operate simply to restrict the categories of excluded records to those relating to the institution’s own workforce where the focus has shifted from “employment of a person” to “employment-related matters”. . . . (emphasis added)

[40] In Orders MO-1913 and MO-3466, the IPC found that records that were prepared for and could be taken into account in the completion of an officer’s annual performance appraisal - which could result in disciplinary proceedings or have a direct effect on the officer’s future employment prospects - fell within the exclusion in section 52(3)3. The IPC further concluded that a communication relating to the officer’s employment performance would be a matter in which the police had an interest that was more than mere curiosity or concern. I agree with and adopt these orders, finding that the purpose of record 65 is analogous to the circumstances of Orders MO-1913 and MO-3466. The record was created for the purposes of the officer’s performance appraisal. As a result, I find that the exclusion in section 52(3)3 applies to record 65, and this record is therefore excluded from the scope of the Act.

[41] I find that the exclusion in section 52(3)3 does not apply to the remaining records because the police have not met the requirements of the three-part test in section 52(3)3. On my review of the police’s representations - including the confidential ones - and the records themselves, I find that parts one and two of the test have been met - the records were prepared by the police and the preparation of the records was in relation to communications. However, I find that the third part of the test is not met because the communications were not about labour relations or employment-related matters in which the police have an interest.

[42] In Ontario (Ministry of Correctional Services) v. Goodis,[14] the Divisional Court confirmed that section 65(6)3 – the provincial equivalent of section 52(3)3 - must be interpreted narrowly in light of the purposes of the Act so as to exclude only those records that actually relate to employment matters in which the institution has an interest.

[43] The Court stated that “the type of records excluded from the Act by section 65(6) are documents related to matters in which the institution is acting as an employer, and terms and conditions of employment or human resources questions are at issue.”[15] The Court also noted that whether or not a particular record is employment-related would depend on an examination of the particular record.[16]

[44] Applying this reasoning in Order MO-2660, the IPC found that an organizational review, for example, did not qualify for the exclusion, noting:

All institutions operate through their employees. Employees are the means by which all institutions provide services to the public. In this appeal, the record was not created to address matters in which the institution is acting as an employer, and the terms and conditions of employment or human resources questions are at issue, in the sense intended by section 52(3). The record is an operational review of the Toronto Fire Service’s dispatch system focusing on the efficient and timely response to communications from an operational standpoint.[17] (emphasis added)

[45] I agree with the reasoning in Ontario (Ministry of Correctional Services) v. Goodis and Order MO-2660 and apply it to the records in this appeal. The records are all emails in which the use of Clearview AI is discussed by police employees. In my view, the issue is not whether the records simply include information relating to the police’s workforce but whether the records address matters in which the police are acting as an employer, and the terms and conditions of employment or human resources questions are at issue. I find that the records do not meet this threshold. I find that the records are about the use of facial recognition technology in the course of law enforcement, but not in the context of labour relations or employment-related matters. Records 92, 121 and 264[18] do refer to staffing issues, but I find that these references are of a peripheral nature only and are not central to what the records are about – operational issues concerning the use of facial recognition technology. As a result, I find that the third part of the test is not met and these records are not excluded from the scope of the Act.

[46] The police are also claiming exemptions for records 36, 39, 53, 116, 118, 129, 136, 150, 152, 153 and 190, which I consider below. The police did not claim any exemptions with respect to records 92, 111, 121 and 264 despite them having the opportunity to do so during the inquiry. As a result, I will order the police to issue an access decision to the appellant regarding these records.

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

[47] The police claim that records 36, 39, 53, 66, 77, 116, 129, 136, 148, 150, 152, 153, 207, 212, 224, 228, 231, 250, 267, 272, 273, 275 and 278 contain personal information, and that, as a result, these records are exempt from disclosure under the mandatory personal privacy exemption in section 14(1).

[48] In order to decide if the records are exempt under section 14(1), the IPC must first decide whether the records contain “personal information,” and if so, to whom the personal information relates. Section 2(1) of the Act defines “personal information” as “recorded information about an identifiable individual.”

[49] 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.[19] See also section 2(2.1) which states:

(2.1) Personal information does not include the name, title, contact information or designation of an individual that identifies the individual in a business, professional or official capacity.

[50] 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.[20]

[51] 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.[21]

[52] Section 2(1) of the Act gives a list of examples of personal information. The relevant example in this appeal states:

“personal information” means recorded information about an identifiable individual, including,

(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.

[53] 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.”[22]

Representations

[54] The police submit that the records contain the personal information of identifiable individuals, namely members of the public, persons of interest, suspects and accused persons. In some instances, the police submit, the identity of members of the public may not be known by the police, but the records contain their photographs. The police argue that it is reasonable to expect that an individual may be identified from the disclosure of their photograph.

[55] The police further submit that the records also contain the names, titles, contact information and designation of individuals engaged in their professional capacity, which qualifies as personal information because the subject matter of the records is the use of facial recognition technology by the police, which has been the subject of an ongoing debate about balancing individual privacy with public safety. The police go on to state:

Given the involvement of the Information and Privacy Commissioner, the Ontario Association of Chiefs of Police and numerous Police Services in these discussions, and all the publicity surrounding this subject matter, it is reasonable to presume that some of the identified individuals engaged in their professional capacity may have been the subject of disciplinary investigations, which would be considered personal information.

[56] The appellant submits that the definition of personal information in section 2(1) does not justify the wholesale withholding of relevant records and that any personal information could be severed from the records.

[57] In reply, the police submit that they did not engage in a “wholesale” withholding of records and that during the mediation of the appeal, they disclosed as much information to the appellant as possible, without disclosing the personal information of others.

Analysis and findings

[58] I have reviewed the records at issue. I find that records 66, 77, 148, 150, 153, 207, 212 224, 250 and 267 and – on my own review – records 221 and 222, contain the personal information of identifiable individuals, including their names where it appears with other personal information relating to them, such as images of their faces or the fact that they were being investigated by the police. This information qualifies as the personal information of these individuals under paragraph (h) of the definition of personal information in section 2(1).

[59] I further find that records 116, 129, 150 and 222 contain information about police officers that qualifies as their personal information. I find that while the records were created in the officers’ professional capacity, the content of these records would reveal something of a personal nature about the officers. I further find that the personal information about police officers is not related to actual or potential disciplinary proceedings.

[60] Conversely, I find that records 36, 39, 53, 136, 152, 228, 231, 272, 273, 275 and 278 do not contain any information that qualifies as the personal information of any identifiable individuals. These records are emails which consist of communications of police officers in their official capacities. There is nothing in these emails that would reveal something of a personal nature about them or anyone else. Because these records do not contain personal information, the personal privacy exemption in section 14(1) – which the police claim - does apply to them. The police are claiming the exemptions in sections 6(1) or 8(1) to records 39, 53, 228, 231 and 273, which I consider below. The police did not claim any other exemptions to records 36, 136 and 152. As a result, I will order the police to disclose records 36, 136 and 152 to the appellant.

Issue D: Does the mandatory personal privacy exemption at section 14(1) apply to the information at issue?

[61] The police are claiming the application of the mandatory personal privacy exemption to records 66, 77, 116, 129, 148, 150, 153, 207, 212, 224, 250 and 267. I will also determine whether section 14(1) applies to records 84, 221 and 222. One of the purposes of the Act is to protect the privacy of individuals with respect to personal information about themselves held by institutions. Section 14(1) of the Act creates a general rule that an institution cannot disclose personal information about another individual to a requester. This general rule is subject to a number of exceptions.

[62] The section 14(1)(a) to (e) exceptions are relatively straightforward. If any of the five exceptions covered in sections 14(1)(a) to (e) exist, the institution must disclose the information.

[63] The section 14(1)(f) exception is more complicated. It requires the institution to disclose another individual’s personal information to a requester only if this would not be an “unjustified invasion of personal privacy.” Section 14(1)(f) states:

A head shall refuse to disclose personal information to any person other than the individual to whom the information relates except,

if the disclosure does not constitute an unjustified invasion of personal privacy.

[64] Other parts of section 14 must be looked at to decide whether disclosure of the other individual’s personal information would be an unjustified invasion of personal privacy. Under section 14(1)(f), if disclosure of the personal information would not be an unjustified invasion of personal privacy, the personal information is not exempt from disclosure.

[65] Section 14(3) helps in deciding whether disclosure would or would not be an unjustified invasion of personal privacy. In this case, the police are claiming that the personal information is subject to the presumption in section 14(3)(b), which states:

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

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;

[66] This presumption requires only that there be an investigation into a possible violation of law.[23] So, even if criminal proceedings were never started against the individual, section 14(3)(b) may still apply.[24]

[67] If the presumption in section 14(3)(b) applies, the personal information cannot be disclosed unless:

• there is a reason under section 14(4) that disclosure of the information would not be an “unjustified invasion of personal privacy,” or
• there is a “compelling public interest” under section 16 that means the information should nonetheless be disclosed (the “public interest override”).[25]

[68] The presumption can apply to different types of investigations, including those relating to by-law enforcement,[26] and enforcement of environmental laws,[27] occupational health and safety laws,[28] or violations of the Ontario  Human Rights Code .[29]

Representations

[69] The police submit that several of the records contain personal information that was collected as part of investigations into possible violations under the Criminal Code of Canada . The police also reiterate that some of the personal information of officers who may have used facial recognition technology may have been the subject matter of disciplinary investigations under the Police Services Act and the records may contain information “proferred” as part of an investigation.

[70] The appellant submits that section 14(1) does not justify the wholesale withholding of relevant records and that any personal information could be severed from the records. In reply, the police submit that the police have made every effort to disclose as much information to the appellant as possible, and that there is no further personal information that can be disclosed to the appellant under the severing provision in section 4(2) of the Act.

Analysis and findings

[71] I have reviewed the personal information at issue and I am satisfied, based on the police’s representations and my review of the records themselves, that the presumption in section 14(3)(b) applies to all of the personal information because it was compiled and is identifiable as part of an investigation into a possible violation of the Criminal Code of Canada . The records are investigation reports and email communications detailing police investigations about specific individuals identified in the records, including the personal information I described above. Contrary to the police’s assertion, the personal information about police officers I find exempt under section 14(1) is not related to possible disciplinary actions, but is related to criminal investigations they were undertaking. As stated above, if one of the presumptions in section 14(3) applies, the personal information is exempt from disclosure under section 14(1) unless the information falls within one of the paragraphs in section 14(4), or unless the public interest override applies.

[72] I find that none of the personal information falls within any of the paragraphs in section 14(4) and therefore, subject to my discussion of the public interest override below, I find that this personal information is exempt from disclosure under section 14(1).

Severance

[73] With respect to whether the records can be severed, I find that records 66, 77 and 250 cannot be severed. Should these records be severed, the remaining information would consist solely of meaningless snippets. As a result, I find that these records are exempt from disclosure in their entirety under section 14(1).

[74] However, I find that the personal information in records 129, 148, 150, 153, 207, 212, 224 and 267 can be severed from the rest of the record and I will order the police to disclose these records to the appellant, withholding the personal information that is exempt from disclosure under section 14(1). Turning to records 84, 116, 221 and 222, I also find that the personal information that is exempt under section 14(1) can be severed from these records. However, the police are also claiming the exemption in section 6(1)(b) to the remaining information records 84, 116, 221 and 222, which I consider in Issue E.

Issue E: Does the discretionary exemption at section 6(1)(b) relating to closed meetings apply to the records?

[75] The police claim that section 6(1)(b) applies to records 1, 2, 5, 6, 32, 68, 84, 110, 116, 118, 122, 123, 132, 146, 168, 176, 179, 221, 222, 265 and 292. Section 6(1)(b) protects certain records relating to closed meetings of a council, board, commission or other body.

[76] Section 6(1)(b) reads:

A head may refuse to disclose a record,

that reveals the substance of deliberations of a meeting of a council, board, commission or other body or a committee of one of them if a statute authorizes holding that meeting in the absence of the public.

[77] For this exemption to apply, the institution must show that:

1. a council, board, commission or other body, or a committee of one of them, held a meeting,
2. a statute authorizes the holding of the meeting in the absence of the public, and
3. disclosure of the record would reveal the actual substance of the deliberations of the meeting.[30]

[78] The institution must show that it held a meeting, and that it was authorized by law to hold the meeting in camera.[31] For the meeting to be authorized to be held in camera, its purpose must have been to deal with a matter for which a closed meeting is authorized by statute.[32]

[79] Further, it must be established that disclosure of the record would reveal the actual substance of deliberations that took place at the in camera meeting, and not just the subject of the meeting or the deliberations.[33] “Deliberations” refer to discussions conducted with a view towards making a decision.[34]

[80] Section 6(1)(b) does not protect records merely because they refer to matters discussed at a closed meeting, and it does not protect the names of individuals attending meetings, and the dates, times and locations of meetings.[35]

[81] Section 6(2)(b) of the Act sets out an exception to section 6(1)(b). It reads:

Despite subsection (1), a head shall not refuse under subsection (1) to disclose a record if,

(b) in the case of a record under clause (1)(b), the subject-matter of the deliberations has been considered in a meeting open to the public;

Representations

[82] The police submit that they have met the requirements of the three-part test in section 6(1)(b) because the Niagara Police Services Board (the board) discussed the use of facial recognition technology at two in-camera meetings, and these meetings were authorized under section 35(4)(b) of the Police Services Act.[36] The subject matter of these records was never discussed at a meeting open to the public. If the records were to be disclosed, the police argue, the actual substance of the deliberations that took place at the meetings would be revealed.

[83] The appellant’s position is that because the use of Clearview AI was never discussed at a meeting open to the public, there is a lack of transparency and public accountability on the part of the police and, as a result, the public interest override in section 16 applies to these records.

Analysis and findings

[84] I find that records 1, 2, 5, 6, 68, 123 and 168 are exempt from disclosure under section 6(1)(b), but that records 32, 84, 110, 116, 118, 122, 132, 146, 176, 179, 221, 222 and 265 are not exempt from disclosure under this exemption.

[85] To begin, I find that parts one and two of the three-part test in section 6(1)(b) have been met with respect to the records for which section 6(1)(b) was claimed. In particular, I find that the board held two in-camera meetings, and that these meetings were authorized to be held in-camera under section 35(4)(b) of the Police Services Act to discuss “other matters” referred to in that section.

[86] Turning to part three of the three part test, I find that the disclosure of records 1, 2, 5, 6, 68, 123 and 168 contain the actual substance of the board’s deliberations or would reveal the substance of the deliberations that took place at the two in-camera board meetings. Records 1, 2, 5 and 6 are memoranda prepared by the police for the board after the first closed meeting of the board. I find that these records either consist of the actual substance of deliberations or would reveal the substance of deliberations that took place at the meeting. Record 6 is a draft of correspondence the police intended to send. This correspondence is not the final product and its content would reveal the substance of the board’s deliberations. Record 68 – duplicated in record 168 – is an email from the board to the police with a detailed question about the substance of upcoming deliberations. Record 123 is a report prepared by the Chief of Police for the board, the content of which was deliberated by the board.

[87] I also find that the none of the exceptions in section 6(1)(b) apply to these records because I have not been provided with evidence that the subject matter of the deliberations was considered at a meeting open to the public. As a result, I find that these records are exempt from disclosure under section 6(1)(b), subject to my findings regarding the police’s exercise of discretion. I also note that the public interest override in section 16 – which the appellant has raised – does not apply to information that is exempt under section 6(1)(b).

[88] Regarding the remaining records, I find that the disclosure of the information in records 32, 84, 110, 116, 122, 132, 146, 176, 179, 221, 222 and 265 would not reveal the substance of the deliberations that took place at the two in-camera meetings of the board. All of these records are internal police emails in which police officers are discussing the use of Clearview AI technology. As previously stated, section 6(1)(b) of the Act specifically requires that disclosure of the records would reveal the actual substance of deliberations which took place at the board’s closed meeting, not only the subject of the deliberations.[37] The police have the onus of establishing how disclosure of the records would reveal the actual substance of the deliberations at the two meetings and not merely the subject of the deliberations.

[89] On my review of these records, I find that they include staff discussions about the use of Clearview AI, but that their disclosure would not reveal the substance of the deliberations that took place at the two meetings or permit the drawing of accurate inferences about the substance of the board’s deliberations. As a result, I find that part three of the three-part test has not been met and these records are not exempt under section 6(1)(b), subject to my findings regarding the police’s exercise of discretion.

Issue F: Does the discretionary exemption at sections 8(1)(c) and 8(1)(l) related to law enforcement activities apply to the records?

[90] The police claim the application of the discretionary exemption in sections 8(1)(c) and (l) to records 10 (in part), 39, 53, 190, 228, 231 and 273. Section 8 contains several exemptions from a requester’s right of access, mostly related to the context of law enforcement.

[91] Section 8(1) states, in part:

(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.

[92] The term “law enforcement”[38] is defined in section 2(1) and includes “policing.” The IPC has found that “law enforcement” can include a police investigation into a possible violation of the Criminal Code .[39] Many of the exemptions listed in section 8 apply where a certain event or harm “could reasonably be expected to” result from disclosure of the record.

[93] 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.[40]

[94] However, the exemption does not apply just because a continuing law enforcement matter exists,[41] and parties resisting disclosure of a record cannot simply assert that the harms under section 8 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 8 are self-evident and can be proven simply by repeating the description of harms in the Act.[42]

[95] Parties resisting disclosure must show that the risk of harm is real and not just a possibility.[43] 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.[44]

[96] For section 8(1)(c) to apply, the institution must show that disclosing the investigative technique or procedure to the public could reasonably be expected to interfere with its effective use. The exemption normally will not apply where the technique or procedure is generally known to the public.[45] 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.[46]

[97] For section 8(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

[98] The police submit that in light of internet and social media usage increasing, police have developed investigative techniques and procedures to provide online investigative support in law enforcement investigations. The police’s position is that it is reasonable to expect that disclosure of the records would reveal investigative techniques and procedures involving technology (section 8(1)(c)), and that this disclosure would allow individuals engaged in criminal activities to use this information to circumvent law enforcement measures (section 8(1)(l)). The police provided further confidential details about the investigative techniques contained in the records.

[99] The appellant submits that because the police acknowledge that they no longer use Clearview AI, there is no reasonable expectation that the disclosure of records relating to the use of Clearview AI in 2019 and 2020 would have any meaningful substantive impact on law enforcement activities.

Analysis and findings

[100] I find that all of the records were created as part of policing which is included in the definition of law enforcement in section 2(1). I further find that records 10, 39 and 190 are exempt from disclosure under section 8(1)(c) because the disclosure of this information could reasonably be expected to reveal investigative techniques and procedures currently in use that are not known to the public and that their disclosure could reasonably be expected to interfere with the effective use. Record 10 is a nine page legal opinion provided by a law firm to Clearview AI. The police have this record and have already disclosed all of the record to the appellant with the exception of one full paragraph on page 2 and portions of paragraphs on pages 2 and 7. I find that there are investigative techniques referred to in this record that are be currently in use by the police. Records 39 and 190 are emails between police officers[47] in which actual investigative techniques and tools that would not be known to the public are discussed. I further find that the investigative techniques set out in the records 39 and 190 relate to more tools and techniques used by the police than solely Clearview AI and that the disclosure of these techniques could reasonably be expected to interfere with their effective use. As a result, subject to my findings regarding the police’s exercise of discretion, I find that these records are exempt from disclosure under section 8(1)(c).

[101] With respect to records 53, 228, 231 (a duplicate of 228) and 273, I find that they are not exempt under either section 8(1)(c) or 8(1)(l). All four records are emails. Records 53 and 273 are emails between police officers. Records 228 and 231 are duplicates of an email exchange between Clearview AI and a police officer. On my review of the records, I find that there is discussion about the use of Clearview AI. However, I also find that they do not reveal any investigative techniques that are not known to the public, the disclosure of which could reasonably be expected to interfere with investigative techniques. In addition, I find that there is no reasonable basis for concluding that disclosure of the emails could be expected to facilitate the commission of an unlawful act or hamper the control of crime.

[102] As a result, I find that records 53, 228, 231 and 273 are not exempt from disclosure under either section 8(1)(c) or 8(1)(l). Accordingly, I will order the non-exempt information to be disclosed to the appellant.

[103] I also note that the public interest override in section 16, which the appellant raised generally in this appeal, does not apply to information found exempt under section 8.

Issue G: Does the mandatory exemption at section 9(1)(b) for information received from other governments apply to record 52?

[104] Section 9 protects certain information that an institution has received from other governments.[48] It states, in part:

(1) A head shall refuse to disclose a record if the disclosure could reasonably be expected to reveal information the institution has received in confidence from,

(b) the Government of Ontario or the government of a province or territory in Canada;

(2) A head shall disclose a record to which subsection (1) applies if the government, agency or organization from which the information was received consents to the disclosure.

[105] The purpose of this exemption is to ensure that institutions under the Act can continue to receive information that other governments might not be willing to provide without some assurance that it will not be disclosed.[49]

[106] For a record to qualify for this exemption, the institution must establish that:

1. the information was received by the institution in confidence; and
2. disclosure of the record could reasonably be expected to reveal information that it received from one of the governments, agencies or organizations listed in the section.[50]

[107] The exemption is meant to protect the interests of the organization that provided the information, not the institution that received it. Whether the provider of the information is concerned about its disclosure or not in a specific case can be important in deciding whether the information was received “in confidence.”[51]

[108] The exemptions found in section 9 apply where disclosure of the record “could reasonably be expected to” reveal information received from the other government.

Representations

[109] The police submit that record 52 was received by them from the Ontario government, and that the record explicitly states that it is not to be distributed beyond the designated email distribution group without the express written permission. The police then detail the contents of the record, which I will not set out in this order.

[110] The appellant submits that the police have not provided sufficient evidence that the record was received by them in confidence, and goes on to state:

Advice on the [police’s] use of Clearview AI as it pertains to the legalities of this tool and its privacy implications alone are not grounds for withholding records under this clause.

Analysis and findings

[111] I find that record 52 is exempt from disclosure under the mandatory exemption in section 9(1)(b). As previously stated, to be exempt from disclosure under this section, record 52 must be received by the police in confidence and disclosure of the record could reasonably be expected to reveal information that it received - in these circumstances - from the provincial government.

[112] Previous IPC Orders have upheld the exemption in section 9(1)(b) where information was provided in confidence to a police service by the provincial government. For example, in Order MO-1993, the Coroner’s Office was found to be part of a ministry of the provincial government, and records that it provided to a police service in confidence were found to be exempt under section 9(1)(b). In Order MO-4474, records provided in confidence to a police service by a correctional centre - part of a government ministry – were also found exempt from disclosure under section 9(1)(b). I agree with and adopt the approach taken in Orders MO-1993 and MO-4474.

[113] I find that record 52 is an email from Crown Counsel at the Ministry of the Attorney General to the police explicitly marked as confidential. This email was sent to several provincial police services, as well as the RCMP. I find that the record was received by the police in confidence by the provincial government. I also find based on my review of the record that its disclosure could reasonably be expected to reveal information the police received from the provincial government because the record appears to be Crown Counsel’s legal advice to the police. I also find that the exception in section 9(2) does not apply, as the provincial government has not provided consent to disclose the record. As a result, I find that record 52 qualifies for exemption under section 9(1)(b).

[114] The appellant has raised the possible application of the public interest override in section 16 to record 52, which I address in Issue I.

Issue H: Did the police exercise their discretion under sections 6(1)(b) and 8(1)(c)? If so, should the IPC uphold the exercise of discretion?

[115] The sections 6(1)(b) and 8(1)(c) exemptions are discretionary (the institution “may” refuse to disclose), meaning that the institution can decide to disclose information even if the information qualifies for exemption. An institution must exercise its discretion. On appeal, the IPC may determine whether the institution failed to do so.

[116] In addition, the IPC may find that the institution erred in exercising its discretion where, for example, it does so in bad faith or for an improper purpose; it takes into account irrelevant considerations; or it fails to take into account relevant considerations.

[117] In either case, the IPC may send the matter back to the institution for an exercise of discretion based on proper considerations.[52] The IPC cannot, however, substitute its own discretion for that of the institution.[53]

Representations

[118] The police submit that they exercised their discretion in good faith and for a proper purpose, taking into consideration only relevant factors. The police further submit that they disclosed as much information as possible, withholding only information that was exempt and taking into consideration the purpose of the exemptions in sections 6(1)(b) and 8(1)(c).

[119] The appellant’s position is that the police’s conduct in responding to this access request has resulted in them disclosing as few of the records as possible over a protracted period of time. As a result, the appellant concludes that the police not only operated in bad faith, but have consistently been evasive since receiving his access request.

[120] In reply, the police maintain their position that they properly exercised their discretion. They disagree with the appellant’s characterization and clarify that after a further search they discovered more records existed, provided access to these records either in whole or in part, apologized for the oversight and waived all fees. The police also submit that they disclosed further information during the mediation of this appeal.

Analysis and findings

[121] Based on the police’s representations, I find that they adequately exercised their discretion because they took into account relevant considerations and did not take into account irrelevant considerations. I find that the police turned their minds to the appellant’s interests in the disclosure of the records, balancing those interests with the importance of the law enforcement and closed meetings exemptions. Where errors were made by the police, I find the police took responsibility for the errors, and rectified the situation by properly exercising their discretion in disclosing further records and waiving the fee. I find this evidence does not demonstrate that the police exercised their discretion in bad faith. As a result, I uphold the police’s exercise of discretion to the information that I have found to be exempt from disclosure under sections 6(1)(b) and 8(1).

Issue I: Is there a compelling public interest in disclosure of the records that clearly outweighs the purpose of the sections 9(1)(b) and 14(1) exemptions?

[122] The appellant claims that the public interest override in section 16 of the Act applies to the information withheld under sections 9 and 14. Section 16, the “public interest override,” provides for the disclosure of records that would otherwise be exempt under another section of the Act. It states:

An exemption from disclosure of a record under sections 7, 9, 9.1, 10, 11, 13 and 14 does not apply if a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption.

[123] For section 16 to apply, two requirements must be met:

• there must be a compelling public interest in disclosure of the records; and
• this interest must clearly outweigh the purpose of the exemption.

[124] The Act does not state who bears the onus to show that section 16 applies. The IPC will review the records with a view to determining whether there could be a compelling public interest in disclosure that clearly outweighs the purpose of the exemption.[54]

[125] In considering whether there is a “public interest” in disclosure of the record, the first question to ask is whether there is a relationship between the record and the Act’s central purpose of shedding light on the operations of government.[55] In previous orders, the IPC has stated that in order to find a compelling public interest in disclosure, the information in the record must serve the purpose of informing or enlightening the citizenry about the activities of their government or its agencies, adding in some way to the information the public has to make effective use of the means of expressing public opinion or to make political choices.[56]

[126] A “public interest” does not exist where the interests being advanced are essentially private in nature.[57] However, if a private interest raises issues of more general application, the IPC may find that there is a public interest in disclosure.[58] The IPC has defined the word “compelling” as “rousing strong interest or attention”.[59]

[127] The IPC must also consider any public interest in not disclosing the record.[60] A public interest in the non-disclosure of the record may bring the public interest in disclosure below the threshold of “compelling.”[61]

[128] The existence of a compelling public interest is not enough to trigger disclosure under section 16. This interest must also clearly outweigh the purpose of the exemption in the specific circumstances.

[129] An important consideration in balancing a compelling public interest in disclosure against the purpose of the exemption is the extent to which denying access to the information is consistent with the purpose of the exemption.[62]

Representations

[130] The appellant states that he is an academic, writing a book about the use of freedom of access legislation in researching the use of Clearview AI’s facial recognition technology by police forces in Ontario. The appellant submits that the police have gone to lengths to avoid disclosing the records in the public interest. The appellant further submits that since the initial and limited press’s interest in the police’s use of this technology in 2020, there has been virtually no sustained public discussion or dissemination of information pertaining to the topic. Further, there has been almost no published discussion of the use of Clearview AI from an academic perspective. The appellant concludes that the disclosure of the records will assist his academic research and publication of a holistic, balanced and localized discussion of the police’s use of Clearview AI and, as a result, there is a significant public interest in the disclosure of the records.

[131] The police do not deny that the use of facial recognition technology by police is of public interest and the subject of ongoing debate, namely the balancing of the societal interests of individual privacy and public safety. However, the police argue, a compelling public interest in the disclosure of the records that outweighs the purpose of the exemptions in sections 9 and 14(1) does not exist in this case because they already disclosed a significant amount of information to the appellant – 145 pages – and this disclosure is adequate to address any public interest considerations. In addition, the police submit that there has already been wide public coverage of the debate about the use of facial recognition technology over the past three to four years, and the records at issue would not shed further light on the matters.

[132] In reply, the appellant argues that since the initial and limited journalistic interest in the police’s use of Clearview AI in 2020, there has been virtually no sustained public discussion or dissemination of information pertaining to the topic, including from an academic perspective. He submits that the records will assist in his academic research and publication, contributing to a more holistic, balanced and localized discussion about the topic, particularly as it relates to regional police services in Ontario, including the police service in this appeal.

Analysis and findings

[133] I acknowledge the appellant’s concern and find that there is a compelling public interest in disclosure of information about police use of facial recognition technology, particularly the use of Clearview AI. I am also attuned to the public policy concerns about the use of Clearview AI. For example, there has been significant enforcement action against Clearview AI in Canada, the UK, Europe and Australia in relation to its practice of harvesting billions of photographs of individuals from the internet without lawful authority and, in turn, offering its intelligence and investigative services, including these photographs, to law enforcement agencies.[63]

[134] While I agree that there is a compelling public interest in the privacy and safety implications of the use of Clearview AI technology as a whole, I must also consider the specific records at issue in this appeal. In particular, I must consider first whether there is a compelling public interest in disclosure of the records and second, whether that compelling public interest outweighs the purpose of the exemptions – in this appeal the privacy of specific individuals contained in the records (section 14(1)) and the provision of information in confidence from one government to another (section 9).

[135] I will first address the records which I have found to be exempt under section 14(1) (personal privacy).[64] While the appellant stresses the importance of the disclosure of the records to the public’s discussion of the use of Clearview AI, he does not specifically address how there is a public interest in the disclosure of the personal information of identifiable individuals that outweighs the purpose of the personal privacy exemption. Fourteen records contain a significant amount of personal information about identifiable individuals, consisting mainly of photographs of individuals, their name and address. In describing how the Clearview AI software was used in several investigations, the records include many details about identifiable individuals considered to be suspects in investigations. In addition, some of the records contain personal information about police officers. As previously stated, I found that this information is exempt from disclosure under the personal privacy exemption in section 14(1), and where possible, I have ordered the personal information severed from these records, ordering the disclosure of the remaining portions of the records.

[136] In addition, I find that the personal information that is exempt does not respond or refer to the issues of public interest raised by the appellant. In particular, I find that the personal information at issue in these records does not address the appellant’s pursuit of higher level information pertaining to the police’s use of Clearview AI, including if the police use it for purposes other than policing. In addition, even if there was any compelling public interest in these records, it is outweighed by the purpose of the exemption in section 14(1), which is to protect the personal privacy of the affected individuals referred to in the records. Therefore, I find that the public interest override in section 16 does not apply to the information exempt under section 14(1).

[137] Regarding record 52, which I found to be exempt under section 9(1)(b), I find that there is a compelling public interest in the disclosure of the information contained in the record. However, I also find that the compelling public interest in the disclosure of the record is not outweighed by the purpose of the exemption in section 9, which is to protect information received in confidence from another government in order to avoid the potential unwillingness of other governments to supply information that would be of importance and assistance to the institution in the conduct of its public affairs. In these circumstances, this is of particular importance given that record 52 appears to contain legal advice provided in confidence to the police by Crown Counsel. For all of these reasons, I find that the public interest override in section 16 does not apply to the information I have found to be exempt under section 9(1)(b).

ORDER:

1. I order the police to issue an access decision to the appellant regarding records 69, 92, 111, 121, 144 and 264, treating the date of this order as the date of the request.
2. I order the police to disclose records 32, 36, 53, 110, 118, 122, 132, 146, 152, 176, 179 and 265 to the appellant in their entirety by May 14, 2025, but not before May 9, 2025.
3. I order the police to disclose records 84, 116, 129, 136, 148, 150, 153, 212, 221, 222, 224, 228, 231, 267 and 273 in part to the appellant by May 14, 2025, but not before May 9, 2025. I have attached copies of these records to the order sent to the police. The highlighted portions are not to be disclosed to the appellant.
4. I reserve the right to require the police to provide the IPC with a copy of the records it discloses to the appellant.

Original Signed by:		April 7, 2025
Cathy Hamilton
Adjudicator