ORDER P-1156
Appeal P-9500556
Criminal Injuries Compensation Board
NATURE OF THE APPEAL:
The Criminal Injuries Compensation Board (the Board) received a request under the Freedom of Information and Protection of Privacy Act (the Act) for access to records relating to a claim for compensation by a named individual. The Board denied access to the 34 pages that it found responsive to the request. The requester appealed the denial of access.
The appellant is the alleged perpetrator of an assault against the named individual (the affected person) and is liable to reimburse the Board for any award made to the affected person by the Board under the subrogation provisions of section 26(2) of the Compensation for Victims of Crime Act.
The record at issue consists of the application and supporting documents including reports, correspondence and photographs, which I will describe as follows:
Pages 1-4: Application for Compensation
Page 5: Statement of Claim and Losses Claimed
Page 6: Board Questionnaire
Page 7: Request for Extension of Limitation Period
Pages 8-11: Letter from the Board to Records and Registration Branch of the OPP with completed questionnaire
Pages 12-14: Investigator’s notes
Pages 15-19: Medical reports
Pages 20-29: Board correspondence with counsel for affected person
Pages 30-32: Photocopies of photographs
The Board denied access to the record under sections 21(1) and 49(b) of the Act. During mediation, the appellant indicated that he was also seeking access to information about the extension of the limitation period for application granted by the Board to the affected person. The Board confirmed that this information is included in the record at issue in this appeal.
A Notice of Inquiry was provided by this office to the Board, the appellant and the affected person. The appellant raised the application of section 23, the public interest override, to the records. A supplementary notice was then sent to the parties, inviting their submission on this issue. Representations were received from all parties.
The Board has indicated that page 23 is a duplicate of page 11 and that pages 33 and 34 are duplicates of pages 13 and 14. I have reviewed the pages and I agree. Consequently, I shall not consider pages 23, 33 and 34 separately and my findings on pages 11, 13 and 14 will apply equally to pages 23, 33 and 34.
PRELIMINARY ISSUES:
THE RAISING OF ADDITIONAL DISCRETIONARY EXEMPTIONS LATE IN THE APPEALS PROCESS
Upon receipt of the appeal, this office provided the Board with a Confirmation of Appeal notice. This notice indicated that the Board had 35 days from the date of this notice (i.e. October 30, 1995) to raise additional discretionary exemptions not claimed in the decision letter. No additional exemptions were raised during this period.
Subsequently, in its representations received on February 20, 1996, the Board raised the application of the discretionary exemption provided by section 13(1) of the Act to page 12. The deadline for raising additional discretionary exemptions expired on October 30, 1995.
It has been determined in previous orders that the Commissioner has the power to control the process by which the inquiry is undertaken (Orders P-345 and P-537). This includes the authority to set time limits for the receipt of representations and to limit the time during which an institution can raise new discretionary exemptions not claimed in its original decision letter.
The Board acknowledges that the time for raising additional discretionary exemptions has elapsed. It submits that while the Board has considered page 12 to be part of the incident report (pages 13 and 14), withheld on the basis of section 21(3)(b), it can also be considered as a separate record and on that basis, the Board has now raised the application of section 13 to this page.
In Order P-685, Inquiry Officer Anita Fineberg concluded that in cases where a discretionary exemption is claimed late in the appeals process, a decision-maker has the authority to decline to consider the discretionary exemption. I agree with Inquiry Officer Fineberg’s reasoning and adopt it for the purposes of this appeal.
While the Board has provided its reasons for the delay in raising the additional discretionary exemption at this stage of the appeals process, I am not persuaded that a departure from the 35_day time frame is justified in the circumstances of this appeal. Accordingly, I will not consider the application of section 13 to page 12.
APPLICATION OF SECTION 8 OF THE STATUTORY POWERS PROCEDURE ACT
The appellant submits that section 8 of the Statutory Powers Procedure Act (the SPPA) requires the Board to disclose the allegations made against him for the purpose of enabling him to respond. The appellant points out that under section 26(2) of the Victims of Crime Act, he is liable for any compensation awarded to the affected person and this makes the issue of disclosure to the appellant even more critical. The appellant states that he was acquitted of all charges in a court hearing in September, 1991. He claims that he has not been provided with particulars of the claim for compensation filed by the affected person, some 4½ years after the alleged offence.
Section 52(2) of the Act states that the SPPA does not apply to an inquiry to review a head’s decision to deny access to requested records. I am not, accordingly, bound by the disclosure provisions of the SPPA in this inquiry.
Further, I do not have the jurisdiction to review or comment on the disclosure mechanisms which may exist at the Board and are tied to its mandate to administer its own process. The sole issue which I am empowered to determine in this inquiry is whether the exemptions claimed by the Board apply to the records at issue in this appeal. I am, therefore, unable to make a finding on the sufficiency of the disclosure of records made by the Board beyond the context of the provisions of the Act.
DISCUSSION:
PERSONAL INFORMATION
The appellant indicates that he is not seeking access to the address, telephone number and age of the affected person nor any medical history which is not related to the claim for compensation before the Board. Therefore, this information is not part of the record at issue in this appeal. I have highlighted this information on the pages of the record and it should not be disclosed to the appellant.
Under section 2(1) of the Act, “personal information” is defined, in part, to mean recorded information about an identifiable individual. I have reviewed the record at issue and make the following findings:
(1) Pages 6, 15-19, 20-29 and 30-32 contain the personal information only of the affected person;
(2) Pages 2-4, 7, 8-11 and 12-14 contain the personal information of the appellant, the affected person and other identifiable individuals;
(3) I find that Page 5 (the Board’s form of