ORDER M-927
Appeal M_9600365
Renfrew Police Services Board
NATURE OF THE APPEAL:
The appellant’s son died in a car accident which was investigated by the Renfrew Police Service. Under the Municipal Freedom of Information and Protection of Privacy Act (the Act), the appellant submitted a request for information about the accident to the County of Oxford. This request was forwarded to the Renfrew Police Services Board (the Police) in accordance with section 18(2) of the Act.
In particular, the appellant sought access to:
the coroner’s report
all police officers’ notes and reports
all witness statements
all photographs taken
the accident report
the hospital’s medical report, and
any other documents and/or measurements related to the accident.
In essence, this is a request for the investigation file compiled by the Police and related officers’ notebook entries.
The appellant did not receive a response to this request within the thirty-day period contemplated in the Act. In this situation, section 22(4) indicates that the Police are deemed to have given a notice of refusal to grant access, which gives rise to a right of appeal.
On this basis, the appellant filed an appeal of this “deemed refusal” to grant access. As a result, this office opened Appeal M-9600337. During the processing of that appeal, the Police issued a decision in response to the request. As a result, Appeal M-9600337 was closed.
In their decision, the Police denied access to the requested records. They advised the appellant that he did not qualify to make the request under section 54(a) of the Act (which allows the exercise of a deceased individual’s rights or powers under the Act by the individual’s personal representative if exercise of the right or power relates to the administration of the individual’s estate).
The Police went on to indicate that the withheld information is exempt from disclosure under the following sections of the Act:
invasion of privacy - section 14(1)
law enforcement - sections 8(1)(a) and (b), section 8(2)(a).
Once he had received this letter, the appellant indicated that he disagreed with the exemptions claimed, and also that additional responsive records should exist. As a result, this office opened the present appeal file (M-9600365). In connection with this appeal, this office sent a Notice of Inquiry to the appellant, the Police and the other driver involved in the accident (who will be referred to throughout this order as “the other driver”). This notice dealt with the issue of whether the above-noted exemptions apply to the records at issue and whether additional records exist. In response to this notice, the Police and the appellant submitted representations.
In their representations, the Police referred to the exemption provided by section 8(2)(c) of the Act, which they did not mention in their decision letter. In addition, subsequent to the submission of the representations of the Police, the appellant made a complaint under Part VI of the Police Services Act against the officers who investigated the accident. As a result, the Police now claim that the records at issue are outside the scope of the Act because of section 52(3). This section indicates that the Act does not apply to certain records relating to employment and labour relations.
As a result of these developments, this office sent a Supplementary Notice of Inquiry to the appellant and the Police. This notice was not sent to the other driver, because the earlier notice sent to him had been returned by Canada Post. The supplementary notice invited the parties to make submissions on:
(1) whether the Police should be permitted to raise section 8(2)(c) at this stage of the proceedings;
(2) if so, whether section 8(2)(c) applies, and
(3) whether section 52(3) applies to exclude the records from the scope of the Act.
Both the appellant and the Police submitted representations in response to the supplementary notice.
PRELIMINARY ISSUES:
JURISDICTION
The jurisdictional issue in this appeal is whether the records fall within the scope of section 52(3) of the Act. If so, they would be excluded from the scope of the Act unless they are records described in section 52(4), which lists exceptions to the exclusions established in section 52(3).
These sections state:
(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) and (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.
In their representations, the Police indicate that they rely in particular on section 52(3)1 because the appellant’s complaint will require an investigation which could lead to proceedings under the Police Services Act. In order for the records to qualify under this section, the Police must establish that:
the record was collected, prepared, maintained or used by the Police or on their behalf; and
this