ORDER M-1133
Appeal M‑9800071
Halton Regional Police Services Board
NATURE OF THE APPEAL:
The Halton Regional 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 "list of how [the requester] appears in the local records from May 23/97-present" and whether he was the subject of surveillance by three named police officers from December 23, 1997 to the date of his request.
The Police provided the requester with a list of how he appears in their records. However, the Police refused to confirm or deny whether he was under surveillance, pursuant to section 8(3) of the Act.
The requester (now the appellant) appealed this decision.
This office sent a Notice of Inquiry to the appellant and the Police. Representations were received from both parties.
In his letter of appeal, the appellant alleges improper behaviour on the part of the Police employee who dealt with his request. Neither the appeal letter nor the appellant's representations provide details or elaborate on this allegation. I find that this allegation has not been substantiated by the appellant, and I will not deal with it further in this order.
DISCUSSION:
REFUSAL TO CONFIRM OR DENY THE EXISTENCE OF RECORDS
Section 8(3) of the Act states as follows:
A head may refuse to confirm or deny the existence of a record to which subsection (1) or (2) applies
Sections 8(1) and (2) set out various grounds for exemption.
A requester in a section 8(3) situation is in a very different position than other requesters who have been denied access under the Act. By invoking section 8(3), the Police are denying the appellant the right to know whether a record exists, even if one does not.
For this reason, if the Police wish to rely on section 8(3), they must do more than merely indicate that records of the nature requested, if they exist, would qualify for exemption under sections 8(1) or (2). The Police must establish that disclosure of the mere existence or non-existence of such records would communicate to the appellant information that would fall under either sections 8(1) or (2) of the Act (Order P-542).
Accordingly, I will begin by considering whether disclosure of responsive records, if they exist, would qualify for exemption under sections 8(1) or (2). If the answer to this question is yes, I will then consider whether disclosure of the mere existence or non-existence of any such records would communicate to the requester information that would fall under either of these two sections.
The Police submit that if responsive records exist they would qualify for exemption under sections 8(1)(a), (b), (e), (g), (l) and 8(2)(c) of the Act.
Turning first to sections 8(1)(a), (b) and (g), these sections read as follows:
A head may refuse to disclose a record if the disclosure could reasonably be expected to,
(a) interfere with a law enforcement matter;
(b) interfere with an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result;
(g) interfere with the gathering of or reveal law enforcement intelligence information respecting organizations or persons;
I am satisfied that the Police are engaged in "law enforcement" activities, as defined in section 2(1) of the Act.
The Police submit that if an investigation involving the appellant was underway, disclosure of any surveillance records created as part of any such investigation could reasonably be expected to interfere with the investigation (sections 8(1)(a) and (b)). The Police also point out that surveillance information is highly confidential and sensitive, and that confirming its existence would by its very nature interfere with the gathering of or reveal law enforcement intelligence information (section 8(1)(g)).
I am satisfied that the disclosure of the requested records, if they exist, could reasonably be expected to interfere with a law enforcement matter or investigation, and/or could reasonably be expected to reveal law enforcement intelligence information. Therefore, I find that any such records, if they exist, would qualify for exemption under sections 8(1)(a), (b) and/or (g) of the Act.
I am also satisfied that, should any such records exist, disclosure of their existence would communicate information to the appellant which would fall under the exemptions in sections 8(1)(a), (b) and/or (g). Accordingly, I find that section 8(3) of the Act applies in the circumstances of this appeal.
Because of the manner in which I have addressed the application of section 8(3), it is not necessary for me to consider the possible application of sections 8(1)(e) and (l) and 8(2)(c).
ORDER:
I uphold the decision of the Police.
Original signed by: July 22, 1998
Tom Mitchinson
Assistant Commissioner