ORDER PO-1708
Appeal PA-980337-1
Ministry of the Solicitor General and Correctional Service
BACKGROUND:
On July 22, 1992, the Ontario Provincial Police (the OPP) received a complaint that two OPP officers had failed to thoroughly investigate an incident involving an alleged assault on a man by another individual. The complaint was submitted pursuant to Part VI of the Police Services Act (the PSA), in force at the time of the complaint. The complaint against one of the officers was subsequently withdrawn. An OPP Staff Sergeant was assigned to conduct an internal investigation. After completing the investigation, the Staff Sergeant issued a final report to the OPP Professional Standards Branch (now the OPP Professional Standards Bureau) on February 22, 1993, which concluded that the complaint was not substantiated. This finding was subsequently reviewed by the Police Complaints Commissioner (PCC) under Part VI of the PSA.
NATURE OF THE APPEAL:
The Ministry of the Attorney General received a request under the Freedom of Information and Protection of Privacy Act (the Act) for access to the contents of the public complaint file relating to the complaint made to the PCC. The request letter, along with 124 pages of responsive records was transferred by the Ministry of the Attorney General to the Ministry of the Solicitor General and Correctional Services (the Ministry) on the basis that this Ministry had a greater interest in those records. The Ministry also received a separate request for these same 124 pages of records. The requester was the wife of the man who made the original complaint to the OPP.
The Ministry denied access to the records in their entirety, claiming they fell outside the scope of the Act pursuant to sections 65(6)1 and 3 of the Act.
The requester (now the appellant) appealed this decision (Appeal P-9800108).
Following my review of the records and the representations received respecting the above appeal, I issued Order P-1618, in which I found that sections 65(6)1 and 3 did not apply and that the records were subject to the provisions of the Act. I ordered the Ministry to issue an access decision to the appellant, in accordance with the provisions of sections 26 and 29 of the Act.
Shortly after the issuance of Order P-1618, the Ministry applied to Divisional Court for a judicial review of my order. In addition, the Ministry brought a motion to the Court seeking an interim order staying the effect of Provisions 1 and 4 of Order P-1618. I decided to stay the effect of the provisions of Order P-1618 pending the outcome of the motion. The Court dismissed the Ministry's motion for a stay of Provisions 1 and 4, and the Ministry then complied with Order P-1618 and issued a decision respecting access under the Act. The Ministry denied access in full to all records pursuant to sections 14(2)(a), 49(a), 21(1) and 49(b) of the Act.
The appellant appealed this decision (Appeal P-980337-1).
A Notice of Inquiry was sent to the appellant and to the Ministry, and representations were received from both parties.
RECORDS:
The records at issue in this appeal consist of 124 pages of documents all of which relate to the original complaint made to the OPP. They consist of occurrence reports, "will say" statements, duty reports, a witness list, police officer's notes, Reasons For Judgement in a case involving the appellant's husband, a summons, an Information, correspondence, and interim and final reports prepared following completion of the OPP investigation into the original complaint. The records are numbered by the Ministry as pages 79-202, and I will use this numbering scheme in my order.
DISCUSSION:
PERSONAL INFORMATION
Under section 2(1) of the Act, "personal information" is defined, in part, to mean recorded information about an identifiable individual.
All records relate to the investigation by the OPP of the complaint made by the appellant's husband, and I find that they all include his personal information. Several pages also contain information gathered from or about the appellant during the course of the investigation, and I find that these portions also contain her personal information. The appellant has provided a signed consent from her husband, agreeing to the disclosure of any of his personal information to her. Therefore, the appellant and her husband are acting together in this matter, and I will at times refer to these individuals interchangeably as "the appellant" for the remainder of this order.
All of the records at issue in this appeal were prepared by the OPP in the course of investigating a complaint regarding the conduct of a police officer under the PSA. Investigations of this nature could lead to a finding of violation of the provisions of the PSA. As such, I find that all of the records, in the context of this complaint investigation, also contain the personal information of the police officer who was the subject of the complaint.
Some records or parts of records also involve statements and notes taken by the OPP during the course of the investigation from other witnesses; duty reports prepared by the OPP summarizing investigative activity; and documents reflecting other related complaints made to the OPP during the same time period. I find that these records or portions of records contain the personal information of other identifiable individuals, as well as the appellant.
Section 47(1) of the Act gives individuals a general right of access to their own personal information held by a government body. However, section 49 provides a number of exceptions to this general right of access.
INVASION OF PRIVACY
Under section 49(b) of the Act, where a record contains the personal information of both the appellant and other individuals, and the institution determines that the disclosure of the information would constitute an unjustified invasion of another individual's personal privacy, the institution has the discretion to deny the requester access to that information.
Sections 21(2), (3) and (4) of the Act provide guidance in determining whether disclosure of personal information would result in an unjustified invasion of the personal privacy of the individual to whom the information relates. Section 21(2) provides some criteria for the head to consider in making this determination. Section 21(3) lists the types of information whose disclosure is presumed to constitute an unjustified invasion of personal privacy.
If none of the presumptions contained in section 21(3) apply, the institution must consider the application of the factors listed in section 21(2) of the Act, as well as all other considerations that are relevant in the circumstances of this case.
The Ministry submits that the presumption contained in section 21(3)(b) applies to all of the records. The Ministry also maintains that disclosure of information relating to individuals other than the appellant would result in unfair exposure to harm (section 21(2)(e)) and that this same information is highly sensitive (section 21(2)(f)).
The appellant submits that three of the factors listed under section 21(2) which favour disclosure are present in the circumstances of this appeal.
The appellant provides examples of instances which she feels substantiate her position that the information in the records may be inaccurate or unreliable (section 21(2)(g)).
She also submits that disclosure of the information is desirable for the purpose of subjecting the activities of the Government of Ontario and its agencies, including the OPP, to public scrutiny (section 21(2)(a)).
Finally, the appellant provides a detailed chronology of events following the completion of the PCC matter in 1992, and arguments to support her position that disclosure of the records is relevant to a fair determination of the rights of herself and her husband in a matter that was before the courts at the time of her request to the Ministry (section 21(2)(d)).
I will first consider the Ministry's claim that the presumption in section 21(3)(b) of the Act applies to all of the records. This section states:
A disclosure of personal information is presumed to constitute an unjustified invasion of personal privacy where 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;
The Ministry submits that all of the information at issue in this appeal was compiled and is identifiable as part of an investigation into possible violations of law. The Ministry points out that the records form part of the report and file prepared as a result of an investigation under the PSA.
The Ministry goes on to state:
The PSA like its predecessor the Police Act, establishes the OPP and addresses other pertinent matters including the discipline of police officers. Orders P-285 and P-372 considered records similar to those at issue in this appeal. In Order P-372, Mr. Asfaw Seife, Inquiry Officer, states the following on page 5:
In Order P-285, Assistant Commissioner Tom Mitchinson found that investigations of allegations of violations of the Police Act qualify as investigations into a possible violation of law, for the purposes of section 21(3)(b). I agree.
The Ministry submits that the personal information contained in the record at issue was collected as part of an investigation into possible violations of the PSA. As indicated in a number of previous IPC orders (P-233, P-237, M-22, M-289, M-351, M-395, P-613), section 21(3)(b) applies to investigations into possible violations of law, therefore, there is no need for criminal charges to be laid or for proceedings to have been commenced for the presumption to ally. The Ministry submits that disclosure of the personal information of other individuals [other than the appellant] contained in the record would constitute an unjustified invasion of the privacy of these other individuals in accordance with section 21(3)(b).
The appellant's submissions on this issue include the following statements:
... any record concerning the public complaint created after the completion of [the OPP Staff Sergeant's] investigation, does not fall within the ambit of section 21(3)(b).
The investigation of the public complaint, the manner in which [the police officer who was the subject of the complaint] conducted his investigation, is just that. Did he contact all possible witnesses, did he accurately report to the Crown concerning his action, etc. It is not an investigation into the personalities and/or acceptability of the complaints.
Many previous orders have held that a public complaint investigation is a law enforcement investigation, since such an investigation can lead to charges against the subject officer, and a hearing before a board of inquiry under the PSA (Orders P-1250, P-932 and M-757). I agree with the Ministry's position that the records at issue in this appeal should be treated similarly, and I find that the records are identifiable as part of an investigation into a possible violation of law, specifically an alleged breach of the PSA. As such, the records satisfy the requirements of the presumption under section 21(3)(b).
The Divisional Court has stated that once a presumption against disclosure has been established, it cannot be rebutted by either one or a combination of the factors set out in section 21(2) (John Doe v. Ontario (Information and Privacy Commissioner) (1993), 1993 CanLII 3388 (ON CTGDDC), 13 O.R. (3d) 767). Consequently, although the appellant has made extensive representations with respect to sections 21(2)(a), (e) and (g), these provisions cannot apply to rebut the presumption in section 21(3)(b).
The information in the records does not fall under any of the provisions of section 21(4), and section 23 has not been raised by the appellant.
Accordingly, subject to certain exceptions which I will discuss next, I find that the records qualify for exemption under section 49(b) of the Act.
In Order M-444, former Adjudicator John Higgins found that non-disclosure of information which the appellant in that case provided to the Metropolitan Toronto Police in the first place would contradict one of the primary purposes of the Act, which is to allow individuals to have access to records containing their own personal information unless there is a compelling reason for non-disclosure. This reasoning has been applied in a number of subsequent similar orders of this Office (eg. M-451, M-613, P-1457 and P-1701) and, in my view, it is equally applicable to certain records at issue in the present appeal. I find that applying the section 21(3)(b) presumption to deny access to information which the appellant or her husband originally provided to the OPP would, according to the rules of statutory interpretation, lead to an "absurd" result. On this basis, I find that the presumption in section 21(3)(b) does not apply to records which contain this information.
Similarly, I find that applying the section 21(3)(b) presumption to any records previously provided to the appellant as a result of my decision in Order P-1618, any records provided to the appellant or her husband during the course of the OPP investigation into the husband's original complaint, or the Reasons For Judgement in which the appellant's husband was a party, would also lead to an "absurd" result. Therefore, for the same reasons outlined above, I find that the presumption in section 21(3)(b) does not apply to records which meet this description.
I have considered the various factors listed in section 21(2) and all of the circumstances of this appeal, and I find that disclosure of all records or parts of records which are the subject of my "absurd result" findings, would not constitute an unjustified invasion of personal privacy, and section 49(b) does not apply.
For the record for which only partial access should be provided, I will attach a highlighted version with the copy of this order sent to the Ministry, indicating the portions that should not be disclosed.
DISCRETION TO REFUSE REQUESTER'S OWN INFORMATION
Under section 49(a) of the Act, the Ministry has the discretion to deny access to an individual's own personal information in instances where certain exemptions would otherwise apply to that information. Section 49(a) states as follows:
A head may refuse to disclose to the individual to whom the information relates personal information,
where section 12, 13, 14, 15, 16, 17, 18, 19, 20 or 22 would apply to the disclosure of that personal information; (emphasis added)
I will consider whether the records qualify for exemption under section 14(2)(a) as a preliminary step in determining if section 49(a) applies.
LAW ENFORCEMENT
The Ministry claims that the records are all exempt under section 14(2)(a). Because of my findings under section 49(b), I will restrict this discussion to those records which did not qualify under the section 49(b) exemption claim.
Section 14(2)(a) provides:
A head may refuse to disclose a record,
that is a report prepared in the course of law enforcement, inspections or investigations by an agency which has the function of enforcing and regulating compliance with a law;
In order for a record to qualify for exemption under section 14(2)(a) of the Act, the Ministry must satisfy each part of the following three-part test:
the record must be a report; and
the report must have been prepared in the course of law enforcement, inspections or investigations; and
the report must have been prepared by an agency which has the function of enforcing and regulating compliance with a law.
[Order 200]
The Ministry's representations on this issue state:
The Ministry submits that the record at issue also meets the three-part test ... for the following reasons:
the Complaints Processing Report and the various investigative reports and attachments that are compiled during the course of the investigation are the systematic summary and analysis of the findings of the investigating officer assigned to investigate the complaint. These records are "formal statements or accounts of the results of the collation and consideration of information".
As demonstrated earlier and supported by Order P-285, P-372 and P-1457 investigations of this nature are law enforcement investigations; and
As stated earlier, the PSA establishes the OPP and provides for its composition, authority and jurisdiction. The OPP is an agency that has the function of enforcing the laws of Canada and the Province of Ontario.
The appellant submits:
From the description of the records at issue in the RECORDS section of the Notice of Inquiry only those identified by the Ministry as "reports" can POSSIBLY be a report as defined by previous orders of the IPC. The decision maker should apply the exemption test for Section 14(2)(a) to those records, including those identified by the OPP as "reports".
I am satisfied that the OPP is an agency which has the function of enforcing and regulating compliance with the law, and that some, but not all, of the records were prepared in the course of a law enforcement investigation. However, regardless of whether the second and third part of the exemption test are established, the records at issue must be "reports" in order to qualify for the section 14(2)(a) exemption.
The word "report" is not defined in the Act. Previous orders have found that in order for a record to be considered a report, it must consist of a formal statement or account of the results of the collation and consideration of information. Generally speaking, results would not include mere observations or recordings of fact (Orders 200, M-1048 and P-1618)
The Ministry submits that the Complaints Processing Report and all attachments are reports within the meaning of section 14(2)(a) of the Act.
The complaints processing report at issue in this appeal is not just comprised of one specific report but is comprised of a number of reports and attachments. Initially the complaints processing report starts with the complaint entry form, the complaint form, etc. and then consists of documentation which is a progression through the various stages of the investigation. All the reports and attachments that are prepared or compiled during the course of the investigation are part of the entire complaints processing report.
I disagree with the way in which the Ministry has characterized the various records.
The Reasons For Judgement is clearly not a report prepared during the course of a law enforcement investigation.
Pages 79-113 and 169 are formal reports headed "Public Complaint - Form 4". Some are marked "Interim" and one is marked "Final". Taken together, they consist of a formal statement or account of the results of the investigation into the complaint made to the OPP. They include summaries of statements gathered during the course of the investigation, investigative findings, and conclusions. In my view, these records are properly characterized as "a report", and the requirements of section 14(2)(a) are present with respect to these pages of records.
The rest of the records consist of occurrence reports, statements made by witnesses during the course of the investigation, entries from police officers' notebooks, duty reports, and other related records created during the course of the OPP investigation. In my view, these records are more accurately characterized as recordings of fact rather than accounts of the collation and consideration of information. As such, I find that they do not constitute "a report" for the purposes of the first part of the section 14(2)(a) exemption test.
Although all of the requirements of section 14(2)(a) have been established for pages 79-113 and 169, I find that they do not qualify for exemption under this section in the context of section 49(a).
Section 87 of the PSA, which governed the conduct of the OPP complaint, reads, in part, as follows:
(1) The person in charge of the bureau shall cause an investigation to be conducted into the complaint in accordance with the prescribed procedures.
(2) During the course of the investigation, the person in charge shall send the Commissioner, the complainant and the police officer interim reports on the investigation at monthly intervals.
(4) If there are no new matters to report, the person in charge may send the Commissioner, the complainant and the police officer a notice to that effect instead of an interim report.
(6) When the investigation has been completed, the person in charge shall cause a final report to be prepared and shall send copies of it to the Commissioner, the chief of police, the complainant and the police officer.
(7) The final report shall contain,
(a) a summary of the complaint, including a description of the police officer's alleged misconduct;
(b) a summary of the investigation, including summaries of the information obtained from the complainant, the police officer and any witnesses; and
(c) a description and analysis of any physical evidence obtained.
(10) The interim report and final report shall be written on forms provided by the Commissioner.
It is clear from these statutory provisions, that the investigator is obligated to send a complainant any interim or final reports prepared during the course of an investigation. In fact, the summary page of the interim and final reports are written to the complainant in the second person singular. In my view, to deny access to these reports, which were created for the purpose of communicating the results of the OPP investigation to the appellant's husband, and presumably were actually provided to him in accordance with section 87 of the PSA, would, according to the rules of statutory interpretation, also lead to an "absurd result". On this basis, I find that pages 79-113 and 169 do not qualify for exemption under section 14(2)(a) in the context of section 49(a) of the Act.
ORDER:
I order the Ministry to disclose pages 79-113, 115-121, 150-164, 166-171, 174-175, 177-178, 185-186, 189-190, 201-202, and those portions of page 183 which were disclosed to the appellant as a result of Order P-1618. I have attached a highlighted copy of page 183 with the copy of this order sent to the Ministry's Freedom of Information and Privacy Co-ordinator, which identifies those portions which should not be disclosed.
My order for disclosure of records under Provision 1 of this order is stayed pending the disposition by the Superior Court of Ontario (Divisional Court) of the current judicial review of Order P-1618.
I uphold the Ministry's decision to withhold the remainder of the records from disclosure.
In order to verify compliance with this order, I reserve the right to require the Ministry to provide me with a copy of the records which are disclosed to the appellant pursuant to Provision 1.
Original signed by: August 25, 1999
Tom Mitchinson Assistant Commissioner