ORDER M-312
Appeal M-9300562
Metropolitan Toronto Police Services Board
ORDER
BACKGROUND:
The Metropolitan Toronto Police Services Board (the Police) received a request under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for access to a copy of the document referred to as "Disclosure" or "Crown's Envelope" relating to the requester's arrest and incarceration.
The Police located 28 pages of records responsive to the request, provided access in full to eight pages and denied access in whole or in part to the remaining 16 pages pursuant to sections 14(1)(a), 14(1)(f), 14(2)(i), 14(3)(a), 14(3)(b), 14(3)(d), 38(b) and 38(d) of the Act. The requester appealed this decision.
Mediation was not successful, and notice that an inquiry was being conducted to review the decision of the Police was sent to the appellant and the Police. Representations were received from both parties.
The document to which the appellant refers is entitled "Confidential Crown Envelope". The records at issue in this appeal are the 16 pages to which the Police denied access in whole or in part. These pages are listed in Appendix "A" to this order.
ISSUES:
The issues to be addressed in this appeal are as follows:
A. Whether the records contain "personal information" as defined in section 2(1) of the Act.
B. If the answer to Issue A is yes, and the records contain the personal information of both the appellant and other individuals, whether the discretionary exemption provided by section 38(b) of the Act applies to the records.
C. If the answer to Issue A is yes, and the records contain the personal information of the appellant only, whether the discretionary exemption provided by section 38(d) of the Act applies to the records.
SUBMISSIONS/CONCLUSIONS:
ISSUE A: Whether the records contain "personal information" as defined in section 2(1) of the Act.
Section 2(1) of the Act states, in part, that "personal information" means "recorded information about an identifiable individual".
In my view, all of the information contained in the records qualifies as personal information for the purposes of section 2(1) of the Act. I further find that, with the exception of Pages 25 and 26, each page contains personal information which relates to the appellant and other identifiable individuals. One sentence on Page 25 refers to an individual other than the appellant. The remaining portions of Pages 25 and 26 contain the personal information of the appellant only.
ISSUE B: If the answer to Issue A is yes, and the records contain the personal information of both the appellant and other individuals, whether the discretionary exemption provided by section 38(b) of the Act applies to the records.
In the majority of the records, the Police have granted the appellant access to the parts of the records which contain reference to or information about himself. The Police have withheld only those parts of the records which, in my view, contain personal information of the appellant and other identifiable individuals.
Section 36(1) of the Act gives individuals a general right of access to any personal information about themselves in the custody or under the control of an institution. However, this right of access is not absolute. Section 38 of the Act provides a number of exemptions to this general right of access. One such exemption is found in section 38(b) of the Act, which reads:
A head may refuse to disclose to the individual to whom the information relates personal information,
if the disclosure would constitute an unjustified invasion of another individual's personal privacy;
Section 38(b) introduces a balancing principle. The Police must look at the information and weigh the requester's right of access to his or her personal information against the rights of other individuals to the protection of their personal privacy. If the Police determine that the disclosure of the information would constitute an unjustified invasion of the personal privacy of other individuals, then section 38(b) gives the Police the discretion to deny the requester access to the personal information.
In my view, where the personal information relates to the requester, the onus should not be on the requester to prove that disclosure of the personal information would not constitute an unjustified invasion of the personal privacy of another individual. Since the requester has a right of access to his/her own personal information, the only situation under section 38(b) in which he/she can be denied access to the information is if it can be demonstrated that disclosure of the information would constitute an unjustified invasion of another individual's personal privacy.
Sections 14(2), (3) and (4) of the Act provide guidance in determining whether disclosure of personal information would result in an unjustified invasion of an individual's personal privacy.
Section 14(3) of the Act lists the types of information the disclosure of which is presumed to constitute an unjustified invasion of personal privacy. Section 14(3)(b) 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;
In my view, all of the above-noted personal information was compiled and is identifiable as a part of an investigation into a possible violation of law, namely The Criminal Code, and I find that disclosure of this information would constitute an unjustified invasion of personal privacy under section 14(3)(b).
Once a presumption under section 14(3) of the Act has been established, it may only be rebutted by the considerations contained in section 14(4) or by the public interest "override" set out in section 16 of the Act (Order M-170). I am of the opinion that none of the information at issue falls within the ambit of section