ORDER M-922
Appeal M_9600404
Ottawa-Carleton Regional Police Services Board
NATURE OF THE APPEAL:
The appellant submitted a request to the Ottawa-Carleton Regional Police Services Board (the Police) under the Municipal Freedom of Information and Protection of Privacy Act (the Act) for access to copies of all his personal information held by the Police, including the information in an identified file.
The Police provided access to portions of the responsive records. The Police denied access to parts of Record 7 on the basis of the following exemptions in the Act:
law enforcement report - section 8(2)(a)
invasion of privacy - sections 14(1) and 38(b)
discretion to refuse access to requester’s own information - section 38(a)
In addition, the Police claimed that Record 8 in its entirety fell within the parameters of section 52(3)3 of the Act, and therefore outside the scope of the Act.
The appellant filed an appeal of the decision of the Police. During mediation, he narrowed the scope of the records at issue to Record 8 in its entirety, and page 18 of Record 7. The Police have exempted this page solely on the basis of sections 14(1) and 38(b).
A Notice of Inquiry was sent to the appellant, the Police and an individual whose interests could be affected by the disclosure of page 18 of Record 7 (the affected person).
Representations were received from the Police only.
DISCUSSION:
INVASION OF PRIVACY
Under section 2(1) of the Act, “personal information” is defined, in part, to mean recorded information about an identifiable individual.
Page 18 of Record 7 is a letter sent by the affected person to the Police. I have reviewed this document and finds that it contains the personal information of both the affected person and the appellant.
Section 36(1) of the Act allows individuals access to their own personal information held by a government institution. However, section 38 sets out exceptions to this right.
Where a record contains the personal information of both the appellant and other individuals, section 38(b) of the Act allows the institution to withhold information from the record if it determines that disclosing that information would constitute an unjustified invasion of another individual’s personal privacy. On appeal, I must be satisfied that disclosure would constitute an unjustified invasion of another individual’s personal privacy. The appellant is not required to prove the contrary.
Sections 14(2), (3) and (4) provide guidance in determining whether disclosure of personal information would constitute an unjustified invasion of personal privacy. Disclosing the types of personal information listed in section 14(3) is presumed to be an unjustified invasion of personal privacy. If one of the presumptions applies, the institution can disclose the personal information only if it falls under section 14(4) or if section 16 applies to it. If none of the presumptions in section 14(3) apply, the institution must consider the factors listed in section 14(2), as well as all other relevant circumstances.
The personal information contained in the letter does not fall within any of the presumptions in section 14(3) of the Act. However, the Police submit that it was supplied to them in confidence and that its contents are highly sensitive. The Police also explain the potential repercussions should the letter be disclosed. Having reviewed this letter, I accept these submissions and thus find that sections 14(2)(f), (h) and (e) of the Act are relevant considerations which favour non-disclosure. As indicated, the appellant has provided no submissions raising considerations which favour disclosure.
Based on a consideration of all the relevant circumstances of this case, I find that disclosure of page 18 of Record 7 would constitute an unjustified invasion of the personal privacy of the affected person and that it is exempt pursuant to section 38(b) of the Act.
JURISDICTION
I must now determine if Record 8 in its entirety falls within the scope of sections 52(3) and (4) of the Act. These provisions read as follows:
(3) 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:
Proceedings or anticipated proceedings before a court, tribunal or other entity relating to labour relations or to the employment of a person by the institution.
Negotiations or anticipated negotiations relating to labour relations or to the employment of a person by the institution between the institution and a person, bargaining agent or party to a proceeding or an anticipated proceeding.
Meetings, consultations, discussions or communications about labour relations or employment-related matters in which the institution has an interest.
(4) This Act applies to the following records:
An agreement between an institution and a trade union.
An agreement between an institution and one or more employees which ends a proceeding before a court, tribunal or other entity relating to labour relations or to employment-related matters.
An agreement between an institution and one or more employees resulting from negotiations about employment- related matters between the institution and the employee or employees.
An expense account submitted by an employee of an institution to that institution for the purpose of seeking reimbursement for expenses incurred by the employee in his or her employment.
The interpretation of sections 52(3) send (4) is a preliminary issue which goes to the Commissioner’s jurisdiction to continue an inquiry.
Section 52(3) is record-specific and fact-specific. If this section applies to a specific record, in the circumstances of a particular appeal, and none of the exceptions listed in section 52(4) are present, then the record is excluded from the scope of the Act and not subject to the Commissioner’s jurisdiction.
Section 52(3)3
In order to fall within the scope of paragraph 3 of section 52(3), the Police must establish that:
the record was collected, prepared, maintained or used by the Police on their behalf; and
this collection, preparation, maintenance or usage was in relation to meetings, consultations, discussions or communications; and
these meetings, consultations, discussions or communications are about labour relations or employment-related matters in which the Police have an interest.
[Order P-1242]
Record 8 is a report prepared by the Professional Standards Section of the Police. It contains the report itself, with its findings and recommendations, as well as nine attachments consisting of correspondence and memoranda related to the investigation and the investigator’s notes.
Requirements 1 and 2
The Police state that the information contained in Record