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s.14 SUMMARY OF ORDERS/PRIVACY REPORTS s.8

See also the s.2 definition of "law enforcement.")

GENERAL



  • In order for a record to qualify as a law enforcement record under this exemption, the institution must establish that it has a law enforcement mandate, and that the record is directly related to this mandate. A record that deals with process and procedure, and not with the substance of a complaint is not a law enforcement record under this section. (Order #P-416)


ss.(1)--"Reasonably be Expected to"



  • The Ontario Court of Appeal ruled that the harms envisaged in the law enforcement exemption were satisfied where they "could" reasonably be expected to occur if disclosure was made. In this case, police officers were investigating an allegation of criminal activity said to have occurred in 1976 by staff at the Grandview Training School for Girls in Ontario. Charges were ultimately laid in this matter and the court ruled that disclosure of the records in advance of the trial could reasonably be expected to deprive the accused of the right to a fair trial. In these cases, the right to a fair trial, which is a right enshrined in the Charter of Rights and Freedoms, will be the governing principle. The institution's denial of access was upheld by the Ontario Court of Appeal. Given this decision, in instances where records are relevant to allegations of criminal wrongdoing, institutions may deny access to the records pending a decision by law enforcement authorities not to proceed to a prosecution. (Ian Wilson, the Archivist of Ontario and the Assistant Information and Privacy Commissioner, October 29, 1993, Ontario Court of Appeal)
  • The Ontario Divisional Court held that, in affirming Order P-534, the Commission must approach the exemptions in a "sensitive manner, recognizing the difficulty of predicting future events in a law enforcement context." The Court noted that, given the facts of this case, it did not have to decide whether the 'clear and direct linkage' test applied. In the result, disclosure of certain funding information regarding a criminal investigation where trials were ongoing, was disclosed. (Ontario (Attorney General) v. Fineberg (1994), 19 O.R. (3d) 197 (Ont. Div. Ct.), P-902, P-948, P-991, P-992)


  • The Commission confirmed that reasonable expectation of harm required that the institution establish a clear and direct linkage between the disclosure of the information and the harm alleged. The Commission approved of the position taken by the Federal Court of Appeal in Canada Packers Inc. v. Canada (Minister of Agriculture) [1989] 1 F.C. 47 at 59-60, where the Court indicated that a "reasonable expectation of probable harm" was required. It also approved of the Federal Court Trial Division's decision in The Information Commissioner of Canada v. The Prime Minister of Canada, unreported, November 19, 1992, where the Court stated that the mere "possibility" of harm was not sufficient. The Court held that descriptions of possible harm, even in substantial detail, are insufficient in themselves. Justice Rothstein stated that: The Court must be given an explanation of how or why the harm alleged would result from disclosure of specific information. If it is self-evident as to how and why harm would result from disclosure, little explanation need be given. Where inferences must be drawn, or it is not clear, more explanation would be required. The more specific and substantial the evidence, the stronger the case for confidentiality. The more general the evidence, the more difficult it would be for a Court to be satisfied as to the linkage between disclosure of particular documents and the harm alleged...While the fact that the same or similar information is public is not necessarily conclusive of the question of whether or not there is a reasonable expectation of harm from disclosure of the information sought to be kept confidential, the burden of justifying confidentiality, would...be more difficult to satisfy.(Orders #P-534, M-202, P-557, P-597, P-603, M-223, M-240, P-589, P-616, M-258, M-263, M-268, P-805, P-806, P-816, M-432)
  • In this case, the Commission ruled that the reasonable expectation of probable harm envisaged by clauses (1)(a), (b), (d) and (g) was not established regarding the disclosure of records concerning an Ontario Securities Commission (OSC) investigation. The Commission noted the OSC did not provide sufficient evidence regarding the harms and that, in addition, the investigation had been completed. (Order #P-548)

  • The fact that the disclosure of officers' notebooks contained dates when the officers were on duty, which might be relevant to a current investigation into the officer's conduct under the Police Services Act, was not sufficient to establish a "clear and direct linkage" between the disclosure of the information and the alleged harm. There must exist a reasonable expectation of probable harm; the mere possibility of harm is not sufficient. (Order #M-223)
  • This exemption, in ss.1(a), applied to records related to enforcement of support orders under the Family Support Plan Act. The records related to an ongoing law enforcement matter and disclosure would interfere with it. Enforcement of support orders does not end until the orders are terminated and there are no arrears owing. When a support order is in default, the director may require the payer to file a financial statement and to appear before the court to explain the default. Individuals who do not appear in court in these circumstances may be arrested. A clear and direct linkage was established between disclosure of enforcement records in the custody of the Family Support Plan Branch and a reasonable expectation of interference with future enforcement efforts. Disclosure of this information could hamper or impede the ministry's effectiveness in carrying out its duties in this regard. Even where an individual is not currently in default, the ministry continues to have the case before it and must retain the ability to take enforcement action, should a violation occur at any time in the future. (Order #P-589)
  • Where there is no logical connection between disclosure of information and the harms mentioned in these provisions, the "could be reasonably be expected to" standard is not met. (Order #P-1006)
  • The Commission confirmed that reasonable expectation of harm required that the Institution establish a connection between the disclosure of the records and the endangerment or threat which is contemplated (Order #M-610).
  • The Commission rejected the ministry's view that the "could reasonably be expected to" standard requires only that disclosure could affect fairness of a trial. (Order #P-1006)
  • Evidence of reasonable likelihood was proven by showing that the requested records regarding a break and enter were inextricably linked to fraud charges which were still before the court. (Order #M-670)
  • In order to establish that a harm "could reasonably be expected " to result from disclosure of a record, the party with the burden of proof must provide "detailed and convincing" evidence to establish "a reasonable expectation of probable harm". (Order #PO-1772)


ss.(1)



  • The disclosure of Ontario Provincial Police Criminal Intelligence Records relating to police investigations may be refused under this exemption. (Order #P-106)
  • The "topic" and "background" section of a Minister's briefing response, in respect of a murder that occurred within a correctional facility, is not exempt under this exemption. No harm could reasonably be expected to result from disclosure. The reasonable expectation must be based on reason and not be fanciful, imaginary or contrived. (Orders #P-188, P-203, P-205, P-211, P-221, P-225, P-316, M-10, M-14, M-15, P-428, M-150, P-534, P-970)
  • The security-related provisions of ss.(1) are not engaged in respect of a record that deals only with the "philosophy" of security. (Order #P-205)


ss.(1)(a)



 

  • The fact that an investigation is ongoing is not in itself sufficient to satisfy this exemption. The institution bears the onus of providing evidence to substantiate the reasonable likelihood of the expected harms (Order #P-221). Evidence of reasonable likelihood was proven by showing that the requested records regarding a break and enter were inextricably linked to fraud charges which were still before the court. (Order # M-670)


  • Where records related to an automobile accident were compiled during a police investigation and where the trial in this matter had yet to be scheduled, this exemption applied. In this case, a warrant for non-appearance had been issued for one of the individuals involved in the accident. Some of the records in this case contained personal information and were subject to the presumed invasion provisions in the personal information exemption. The remainder of the records which did not contain personal information were, in these circumstances, exempt under this exemption. (Order #P-567)
  • This provision did not apply to notices of non-compliance with property standard by-laws since disclosure would not interfere with law enforcement. (Order #M-34)
  • This nature of the record and the length of time the investigation has been inactive are factors in determining the applicability of this exemption. (Order #M-22)
  • The provision applied where an offence under the Police Services Act was prosecuted and where the appeal process provided for in the Act was not completed. (Order #P-285)
  • Pre-trial disclosure of a Crown brief that contained occurrence reports and statements of witnesses would be covered by this provision. (Order #P-306)
  • Investigations into complaints under the Ontario Human Rights Code are "law enforcement" matters. Untimely disclosure of records that would identify complainants and respondents and reveal opinions and advice of staff would "interfere with law enforcement matters" and are therefore exempt. (Orders #P-89, P-178, P-208, P-221, P-225, P-258, P-507)
  • The Ontario Human Rights Commission (OHRC) was ordered to share documentary evidence submitted by the parties to a complaint with the parties. While the OHRC submitted that this legislation ought not to be used to change how the OHRC deals with administrative fairness, the Commission ruled that alternate disclosure mechanisms must still conform with the Act. These exemptions are discretionary and, as a result, the institution must exercise its discretion with respect to each record requested. After reviewing the records at issue the Commission noted that the institution had failed to establish a clear and direct linkage between the disclosure and the harms envisaged by this section. The fact that complainants who see these records may change their story was not considered a "probable" harm. (Orders #P-616, P-816)

 

  • The disclosure of the contents of wiretap authorization records could reasonably be expected to "interfere with a law enforcement matter" or with an "investigation." (The Commission has since ruled in Orders #P-344, P-368, P-378 that wiretap records are outside of the scope of Ontario's access and privacy legislation.) (Orders #P-195, P-254)
  • Dislosure of records dealing with the statements of witnesses regarding the actions of members of the Ontario Provincial Police Tactical Response Unit (TRU Team), who were found guilty of Neglect of Duty under the Code of Offences contained in the Police Services Act, Regulation 927, are exempt under this provision. The officers may appeal the penalty or sanction imposed to the Ontario Civilian Commission on Police Services. Under s.63(2) of the Police Services Act, the Commission may receive additional evidence. The Commission may confirm, alter or revoke the decision or may require a re-hearing of the matter. Because a hearing could be commenced where fresh evidence may be provided, the disclosure of the records should be delayed until the time for appeal has elapsed. (Order #P-482)


  • Disclosure of records to a party with an interest in an investigation must be viewed as disclosure to the public generally. Premature and unlimited access by the public to information about an ongoing Ontario Human Rights Commission investigation could interfere with the investigation. (Order #P-178, P-507)
  • The solicitor for a municipality that was the subject of a compliant to the Ontario Human Rights Commission was not entitled to access records of the ongoing investigation. Disclosure under Ontario's freedom of information and privacy legislation is tantamount to disclosure to the public at large. Even though the municipality would not use the information to interfere with witnesses or influence the direction of the investigation, this provision applied and access was denied. (Order #P-507)
  • Where a case was before the courts, the police were able to provide sufficient evidence to establish that disclosure of the records could reasonably be expected to interfere with a law enforcement matter. Thus where a criminal matter had not come to trial, this exemption would apply. (Order #M-450)
  • The Police bear the onus of providing sufficient evidence to establish the reasonableness of the expected harm. The police discharged the onus by providing sufficient evidence that premature disclosure of the vehicle accident report prior to a trial could reasonably interfere with the preparation of the trial. (Order #M-527)
  • A social assistance eligibility review officer's report relating to the requester and the requester's client history sheet were exempt. Investigations by eligibility review officers qualify as law enforcement matters, and the records were created or compiled as a result of the investigation which was undertaken with a view to law enforcement proceedings. In this case, the matter was scheduled for a hearing before the Social Assistance Review Board and criminal charges were also pending. (Order #P-963, P-967, P-969)
  • An Order to Comply, issued to the owners of a property under a zoning bylaw, was not exempt because disclosure of it would not interfere with a rezoning application by the property owner made after the Order to Comply was issued. (Order #M-575)
  • In order to claim this exemption, the Institution must discharge its burden of proof by indicating to the Commission how disclosure of the record would interfere with the law enforcement matter. (Order #M-600)
  • Accident investigations carried out by the Ministry of Labour pursuant to the Occupational Health and Safety Act (OHSA) are "law enforcement" matters, because violations of the OHSA can lead to prosecutions conducted in a court where fines can be imposed (Order #P-1011).
  • This exemption did not apply to those portions of a CPIC (Canadian Police Intelligence Computer) printout that related to offences which have been resolved by the courts (eg. a conviction), because such matters do not relate to an on going law enforcement matter. (Order #M-743)
  • These exemptions cannot be claimed for records that have previously been provided by the police to the requester.(Order #M-838)
  • The mere fact that an investigation is on-going is not sufficient to withhold information that is already known to the requester.(Order #M-838)
  • Business addresses of alarm companies did not fall under this provision. (Order #M-943)
  • Disclosure of a list of companies having Special Discharge Agreements with the region did not interfere with a law enforcement investigation for purposes of section 14(1)(a). (Order MO-1259)

s. 14(1)(a) -- Report

  • The Commission found that the Special Investigation Unit's investigation brief did not constitute a report for the purposes of this section. The investigation brief contained numerous records from diverse sources. While records contained in the brief, such a the Report of the Director, meet the requirements of this section, other records such as incident reports, supplementary reports and excerpts from police officers' notebooks that consist of observations and recording of fact rather than formal evaluative accounts, did not meet the requirements. (PO-1959)



ss.(1)(b)



  • Investigations under the Liquor Licence Act are not completed until the Liquor Licence Board hearing is finalized. Therefore, even when a hearing date is set, this provision may apply if the institution provides sufficient evidence that premature disclosure could interfere with the investigation and prosecution process. (Order #P-338)
  • Proceedings of a board of inquiry under the Ontario Human Rights Code would constitute a "law enforcement proceeding." Investigations by the Human Rights Commission must be allowed to continue without interference. Such investigations cannot be considered complete until either a board of inquiry has been appointed or the reconsideration process has been completed. Disclosure of records to the public prior to the completion of an investigation could interfere with the investigation. As such, the records are exempt. (Orders #P-178, P-253, P-258, P-330)
  • Where a criminal investigation was not completed this exemption applied. (Order #M-263)
  • In this case, the Commission ruled that this exemption applied to records concerning complaints made regarding the septic tank system in a locale and documents related to an appeal before the Environmental Appeal Board. While the board had issued its order, the Health Unit was in the process of undertaking steps to address the non-compliance. As a result, the law enforcement matter was ongoing. (Order #M-268)
  • Where a police investigation is inactive for many years, this exemption does not apply. In this case, the requester sought records about himself prepared by the Ontario Provincial Police and provided to the Ontario Criminal Code Review Board at a hearing in 1985. The Commission found that disclosure of the records could not reasonably be expected to interfere with an investigation since the investigation could not reasonably be said to be ongoing. (Order #P-775)
  • Information about travel arrangements for investigators assigned to investigate municipal corruption which was on-going at the time of the request could, if disclosed, reasonably be expected to interfere with the law enforcement investigation and was therefore exempt. (Order #P-971)
  • Notes taken by Licensing Enforcement Officers, appointed by the Metro Licensing Commission, under the authority of a municipal by-law, reflected the observations of these officers made as a result of visits to various adult entertainment parlours. The Commissioner ruled that such notes are properly characterized as an investigation. However, in this case, the Commission also ruled that license inspection was incidental to the note taking. The notes taken during this investigation were to gather facts and observations to assist the Metro Licensing Commission in developing policy on lap dancing and not for law enforcement purposes. (Order #M-657)
  • Records relating to an investigation under the Real Estate and Business Brokers Act were exempt because the potential for criminal charges or charges under REBBA existed, even though the final status of the criminal charges was unknown and the criminal investigation had yet to be completed. Disclosure of the records would therefore interfere with a law enforcement matter. (Order #P-1049)
  • Investigations pertaining to the cause, origins and circumstances of a fire which may result in criminal charges being laid qualifies as a "law enforcement investigation" within this provision. (Order #P-1150)

 

  • An internal investigation under the Ministry of Correctional Services Act (MCSA) does not fall within the definition of law enforcement.(Order #P-1324)


ss.(1)(a), (b)



  • The word "interfere" in these sections refers to an ongoing investigation or law enforcement matter. (Orders #P-285, P-316, P-403, P-449, P-547, M-315)
  • Where an investigation conducted by the Ontario Human Rights Commission was inactive since May of 1992 (the Order is dated January 1993), the disclosure of the records could not reasonably be expected to interfere with a law enforcement matter or investigation. (Order #P-403)
  • Records regarding an investigation that was completed were exempt under this provision because the trial had yet to take place and the matter was before the court. The disclosure of information that directly relates to the prosecution of an offence prior to the termination of the trial could reasonably be expected to interfere with the preparation or conduct of that proceeding. (Order #P-547)
  • The records of the Pay Equity Commission that are not exempt under s.17(1)(d) [FIPPA] \ s.10(1)(d) [MFIPPA] are not exempt under this provision. Here the information supplied by the parties to the negotiations were exempt under the above provision, and the Commission was not satisfied that the remaining information would result in the harm envisaged by this exemption. (Order #P-653)
  • The Commission found that records related to information gathered about individuals who demonstrate would be exempt under these provisions, if they existed. Police would gather this information to investigate individuals about offences and disclosure may interfere with those investigations and also disclose how such investigations may be carried out. (Order #M-432)
  • Various memoranda and records compiled by the Ministry of Community and Social Services to investigate a social assistance claim and prepare an eligibility review officer's report were exempt. (Order #P-963, P-967, P-969, M-633)
  • An investigation by the Ontario Human Rights Commission is still on-going in circumstances where even though the Commission has finished gathering information or evidence about a human rights complaint, the Commission is still "reconsidering" its conclusions regarding an investigation. Therefore, the records at issue are exempt. However, correspondence between the Ontario Human Rights Commission and a respondent which merely contained information about various administrative stages in the processing of a complaint were not sufficiently connected to the actual investigation of the complaint to be exempt under this provision. (Order #P-973)
  • Records deriving from the Ontario Human Rights Commission's "early settlement initiative" where the matter has not reached the Board of Inquiry stage or reconsideration stage are within this exemption (Order #P-981)
  • Where an investigation into a matter is concluded, disclosure of the records could not reasonably be expected to interfere with a law enforcement matter or investigation. (Order #M-1028)


ss.(1)(a), (b), (f)



  • The Ministry of the Environment's investigative and compliance functions with respect to Ontario's environmental laws, and in particular the Environmental Protection Act, qualify as law enforcement activities for the purposes of this section. (Orders PO-306, PO-1653, PO-1706, PO-1898)

  • Disclosure of information regarding the payment of fees by the Ministry of the Attorney General to a law firm on behalf of a named individual was not subject to this exemption. The information was in respect of libel proceedings launched by the lawyer in response to comments made against him while prosecuting a criminal case. The actions in this regard were civil actions and not criminal actions and this exemption did not apply. (Order #P-676)

  • These exemptions did not apply to OPP investigation records into a vehicle accident, even though charges under the Highway Traffic Act were still before the courts. The Commission held that even though the records may ultimately be of use in the prosecution, the purpose of their creation was to document the OPP investigation and to gather information in furtherance of the OPP's policing role. Simply because a matter is before the courts does not mean that disclosure of information would automatically lead to the harms set out in these provisions. The ministry provided no evidence that the mere disclosure of the information would prejudice an individual's right to a fair trial.(Order # P-1044, M-1067

ss.(1)(a), (b), (f), (l)

  • Records that are factual in nature and that do not refer to particular individuals are not exempt in this case. The site plan of a custodial facility was not exempt because it was simply an aerial representation of the premises and contained insufficient detail to warrant any consideration of these provisions. (Order #P-395)

  • In this case, records regarding administrative arrangements for police rental of cellular phones did not relate to specific law enforcement efforts and therefore the exemption did not apply. (Order #M-519)

  • Institutions must provide sufficient information and reasoning to authorize the use of these exemptions. In this case a reporter sought the amount of money paid for the investigation of a child pornography joint forces investigation that lead to the arrest and prosecution of certain individuals. The Commission did not find that such disclosure would impair the fair trial rights of the accused or interfere with a law enforcement matter, though the trial was upcoming. (Order #P-948)

ss.(1)(a), (f)

  • A victim statement provided by the requester to the police at the time of the incident could not reasonably be expected to cause the harms envisioned in these provisions. (Order #M-646)

ss.(1)(c)

ss.(14)(1)(c)Agency

  • The Office of the Fire Marshall (OFM) is not involved in "law enforcement" for the purpose of section 14(2)(a) of the Act. This is because the OFM, notwithstanding its investigative role does not enforce or regulate compliance with the FMA, the FPPA or any other law. (Order #PO-1921)

  • The Commission found that a section of an audit report generally describing how work is assessed and managed by staff of an Investigations Branch, and the various types of investigations it undertakes, would not reveal any specific technique or procedure not commonly known to the public. (PO-1892-F)

  • Police notebook entries which were disclosed to an individual's counsel to comply with the requirements of section 603(a) of the Criminal Code cannot-by virtue of the Criminal Code disclosure requirement--be said to have been "collected in order to create a record which would be available to the general public, as contemplated by section 14(1)(c) (Order # MO-1329)".

  • Records that contain strategies, procedures and specific drug industry investigation targets, as well as other courses of action that if disclosed would reveal techniques and procedures currently in use or likely to be used in law enforcement, may be exempt under this section. (Order #P-324)

  • The successful application of this exemption requires that the disclosure of the technique or procedure to the public would hinder or compromise its effective utilization. If the technique is generally known, or such that a lay person would expect, reliance on this exemption would not be successful. (Orders #P-170, P-200, M-22, M-202, P-752, P-963, P-967. P-969, P-999, M-761)

  • That a Police Service makes use of cellular telephones is not information which would fall within this exemption. (Order #M-519)

  • In this case, the Commissioner found that there did not exist a logical connection between the disclosure of cellular telephone numbers and the identities of the police personnel assigned to a police investigation. (Order #P-999)

  • A record containing information from the CPIC (Canadian Police Intelligence Computer) database regarding the requester's involvement with the police would not reveal "investigative techniques or procedures". (Order #M-743)

  • Disclosure of Family Support Plan records would not reveal investigative techniques, rather enforcement techniques. (Order #P-1340)

  • This provision does not apply to manuals describing procedures and practices in the forensic science field. The records were available informally and thus disclosure would not compromise future law enforcement investigations. (Order #P-1487)

ss.(1)(d)

  • A complaint form containing the name, telephone number and address of the complainant in respect of a by-law contravention is exempt under ss.(1)(d) because the complainant believed that the information was provided in confidence and the institution's practices and policies supported this. (Orders #M-4, M-10, M-16, M-20, M-31, M-36, M-43, M-70, M-81, P-302, P-312, M-147, M-244, M-246, M-582, M-513)

  • There must be evidence of the circumstances in which the information was provided to establish whether it is "confidential." (Orders #P-139, P-304, P-405, P-478, M-147, M-174, M-202)

  • A complaint letter alleging that an insurer had breached the Insurance Act was exempt under this provision. In these circumstances, the complaint was made in confidence. (Orders #P-302, P-304)

  • Records regarding confidential complaints made by individuals about price spreading by drug manufacturers which submit artificially high prices for inclusion in the Ontario Drug Formulary and Comparative Drug Index, while selling to pharmacists at much lower rates, are exempt at the discretion of the institution under this section. (Order #P-324)

  • Individuals who provide information concerning alleged wrongdoing of bailiffs and others who are regulated by the Ministry of Consumer and Commercial Relations do so on the basis of confidentiality. Therefore, information that may reveal the identity of these individuals who have supplied information, such as names and addresses, in confidence is exempt under this provision. (Order #P-478)

  • In this case, the Commissioner accepted that a confidential source could include a municipal councillor who is providing information about a by-law infraction on behalf of the complainants. The municipal councillor received information concerning a by-law infraction from the complainants and actually made the complaint to the Town. The Town could establish that it maintained a consistent policy of protecting the confidentiality of the names of complainants in by-law enforcement cases. As a result, there was a reasonable expectation of confidentiality and the exemption applied. (Orders #M-147, M-246)

  • In this case, the Commission was satisfied that records prepared in the course of an investigation of murder and robbery contained information that was provided in confidence and that its disclosure could reasonably be expected to reveal the identity of a confidential source. (Order #M-174)

  • This exemption applied to letters of complaint that are received by the Ministry of Consumer and Commercial Relations regarding brokers seeking registration under the Real Estate and Business Brokers Act. The Ministry engages in an investigation, the findings of which may be reviewed by the Commercial Registration Appeal Tribunal. (Order #P-701, P-1049)

  • It was not shown how billing statements for police use of cellular telephones could be exempt under this provision. (Order #M-519)

  • A record disclosing the identity of a confidential informant was not exempt in circumstances where the requester had originally provided the informant's name to the police. (Order #M-669)

  • Records supplied to the Ministry of Consumer and Commercial Relations under a confidential information sharing agreement to aid an investigation under the Real Estate and Business Brokers Act, were exempt as disclosure could reasonably be expected to identify a confidential source in respect of a law enforcement matter. (Order #P-1049)

  • Where an institution has disclosed the identity of the complainant, it has effectively precluded itself from claiming this provision. (Order # P-1125)

  • The Commission found in this case that disclosure of records generated under the Gambling Control Act regarding an investigation into a charitable gambling license would reveal the identity of the complainant, even with the complainant's name and address removed. Therefore, to disclose the record would be to disclose the identity of a confidential source (Order #P-1181)

  • This section did not apply because the identities of the individuals who had provided information to the institution (i.e. the complainants) had been disclosed to the requester in two letters. (Order #P-1520)

ss.(1)(e)

  • "In Ontario (Minister of Labour), the Court of Appeal for Ontario drew a distinction between the requirements for establishing "health or safety" harms under sections 14(1)(e) and 20, and harms under other exemptions. The court stated (at p. 6): The expectation of harm must be reasonable, but it need not be probable. Section 14(1)(e) requires a determination of whether there is a reasonable basis for concluding that disclosure could be expected to endanger the life or physical safety of a person. In other words, the party resisting disclosure must demonstrate that the reasons for resisting disclosure is not a frivolous or exaggerated expectation of endangerment to safety. Similarly [section] 20 calls for a demonstration that disclosure could reasonably be expected to seriously threaten the safety or health of an individual, as opposed to there being a groundless or exaggerated expectation of a threat to safety. Introducing the element of probability in this assessment is not appropriate considering the interests that are at stake, particularly the very significant interest of bodily integrity. It is difficult, if not impossible, to establish as a matter of probabilities that a person's life or safety will be endangered by the release of a potentially inflammatory record. Where there is a reasonable basis for believing that a person's safety will be endangered by disclosing a record, the holder of that record properly invokes [sections] 14(1)(e) or 20 to refuse disclosure. (Order #s MO-1262, PO-1747 and PO-1861)

 

  • "The section 14(1)(e) exception was designed to permit disclosure for the purpose of a technical, scientific, social scientific or similar study, not, as in this case, for the purpose of subjecting the institution's employment practices or expenditures to public scrutiny." (Order #MO-1361-F)

 

  • Disclosure of an occurrence number assigned to a police investigation file is not covered by this provision. (Order #M-41)
  • Information about a police force's firearms and firearms training was not exempt under this provision, where the information was discussed publicly. (Order #P-391)
  • This exemption was upheld by the Commission in respect of law enforcement investigation records created as a result of an incident that took place in a correctional facility. (Order #P-657)
  • This exemption applied to a Security Plan for the Herd Reduction Program at Rondeau National Park. The techniques contained in the plan deal with diffusing violent situations and the Commission accepted that the effectiveness of the plan would be lost if it was disclosed. (Order #P-745)
  • Disclosing information regarding invoice and account numbers of the police cellular phone numbers is not reasonably likely to result in the harm envisioned in this section. (Order #M-552)
  • In this case disclosure of records related to an alleged bylaw offence dealing with the operation of a salvage yard was exempt under this provision. (Order #M-560)
  • The Commission agreed that the questions issued to applicants for a Firearms Acquisition Certificate (FAC) should not be given to the requester because the questionnaire, which is authorized pursuant to the Criminal Code of Canada, screens applicants and determines if the applicants will be issued a FAC. The granting of a FAC to an unstable individual would endanger the life or physical safety of others. (Order #M-767)
  • Disclosure of the number of abortions by hospital or clinic in a specified year could reasonably be expected to endanger the life or physical safety of those associated with the facilities. (Order #P-1499)
  • A contract for personal services between the institution and an individual did not fall under this provision. Disclosure would provide details of the contract including remuneration and responsibilities, but could not reasonably be expected to endanger the physical safety of the individual or others. (Order #P-1545)
  • The party with the burden of proof under section 14(1)(e) must provide "detailed and convincing evidence" of a reasonable expectation of harm. This evidence must demonstrate that there is a reasonable basis for believing that endangerment will result from disclosure--that the reasons for resisting disclosure are not frivolous or exaggerated. (Order #PO-1747)

ss.(1)(e) and (l)



  • These provisions did not apply to an expense claim provided by an employee that disclosed where he conducted his business lunches. While the employee had been the subject of threats in the past, the locales were sufficiently unpredictable, and did not disclose a pattern. Thus, the information did not warrant the application of this exemption. (Order #M-333)


ss.(1)(f)



  • The Ontario Court of Appeal ruled that the harms envisaged in the law enforcement exemption were satisfied where they "could" reasonably be expected to occur if disclosure was made. In this case, police officers were investigating an allegation of criminal activity said to have occurred in 1976 by staff at the Grandview Training School for Girls in Ontario. Charges were ultimately laid in this matter and the court ruled that disclosure of the records in advance of the trial could reasonably be expected to deprive the accused of the right to a fair trial. In these cases, the right to a fair trial, which is a right enshrined in the Charter of Rights and Freedoms (s.11), will be the governing principle. The institution's denial of access was upheld by the Ontario Court of Appeal. Given this decision, in instances where records are relevant to allegations of criminal wrongdoing, institutions may deny access to the records pending a decision by law enforcement authorities not to proceed to a prosecution. (Ian Wilson, the Archivist of Ontario and the Assistant Information and Privacy Commissioner, October 29, 1993, Ontario Court of Appeal)

 

  • Disclosure of records to a requester prior to his or her hearing under the Police Services Act was held not to contravene this provision. (Order #M-362)

 

  • The Commission held that disclosure of records related to the murder of a Crown ward would not be exempt under this provision. The records related primarily to the actions of the institution in response to the failure of the Children's Aid Society to report the Crown ward's disappearance to the police. The fact that the trial of four accused allegedly responsible for the death of the Crown ward had yet to take place did not mean that disclosure to the media would deprive the accused of a fair trial. The Commission noted that the institution had not established that the disclosure would impair the accuseds' right to a fair trial. (Orders #P-805, P-806)
  • In this case, the Commission found certain records, if released, could reasonably be expected to prejudice the trials of individuals who had been charged or will be charged in the future, and who have not yet appeared before court. In particular, the Commission found that the disclosure of a statement relating to anticipated pleas by some of the accused persons, the victims and some health related concerns could reasonably be expected to deprive one or more of the people subject to the investigation of the right to a fair trial. (Order #P-999)


  • In order for this exemption to apply, it is necessary to show the record contains information which will have a bearing on the issue to be decided at trial ie. whether the accused is guilty of the alleged offence. (Order #P-1363)
  • Portions of briefing/issue notes not already exempted from disclosure did not fail under this provision because the institution did not persuade the Commission that any civil or criminal proceeding is likely to result from its internal investigation. (Order #P-1324)
  • Briefing/issue notes regarding an internal investigation did not fall under this provision because no civil or criminal proceeding is likely to result. (Order #P-1324)
  • Relying on the Interpretation Act, the Commission found that a Board of Education is a "person" for the purposes of this provision. However, this provision did not apply regarding the rights of the School Board to a fair hearing involving an appeal under the Education Act of a student's suspension. Under the Education Act, in matters of appeals against student suspensions, a school board is the impartial adjudicator, not a party to the proceedings. The School Board's rights to a fair adjudication are not at issue in such a hearing. Rather the rights of the parties to the appeal of a suspension are at issue, including the rights of the child who was suspended. (Order #M-1098)


ss.(1)(g)



  • "Intelligence" is defined as information gathered by a law enforcement agency in a covert manner with respect to ongoing efforts devoted to the detection and prosecution of crime or the prevention of possible violation of law, and is distinct from information that is compiled and identifiable as part of the investigation of a specific occurrence. In this case, the Commission was satisfied that the police were collecting intelligence information in respect of the records requested. The records contained information about individuals other than the target of the investigation. (Orders #M-202, P-650, P-999, P-1305, M-891, P-1305, P-1343)
  • An affidavit to obtain a search warrant and a search warrant in respect of a police investigation are not exempt under this provision. (Order #M-146)
  • In this case, letters of complaint addressed to an institution did not constitute "law enforcement intelligence information." In order to fall within the exemption, additional representations as to how the disclosure of the letters would be expected to interfere with the gathering of law enforcement intelligence information are required. (Order #P-583)
  • A billing statement for police use of cellular telephones is not gathered as contemplated by this provision. (Order #M-519)
  • Information on a CPIC (Canadian Police Intelligence Computer) printout revealing computer locations and access codes used by police forces when accessing information on the CPIC system is exempt, because its disclosure could enable an individual to access law enforcement intelligence information on CPIC or interfere with the operation of CPIC. (Order #M-743)


ss.(1)(h)



  • This provision provides a discretionary exemption where either the record at issue is itself a record that had been confiscated from a person by a peace officer in accordance with an Act or regulation, or where the disclosure of the record could reasonably be expected to reveal, by permitting the drawing of accurate inferences, the contents of another record which had been confiscated from a person by a peace officer in accordance with an Act or regulation. Where the record was discovered by security staff of a correctional centre during a search of an inmate's property, and was confiscated from the inmate by the superintendent of the correctional facility, this exemption was satisfied. Since superintendents are peace officers under the Ministry of Correctional Services Act, the record is exempt. However, where the record is an Occurrence Report, which simply documents the fact that other records were confiscated but does not describe them in any detail, the exemption does not apply. (Orders #P-421, P-460)


ss.(1)(i)



  • Non-disclosure of information concerning the locations where animal research is conducted under this provision is not based on the identity of the requester's organization or its activities, but rather on the principle that disclosure under the Act must be viewed as disclosure to the public generally. If disclosed, this information could be available to all of the individuals or groups who are involved in the animal rights movement, including those who may elect to utilize acts of vandalism and property damage to promote their cause. Published articles concerning violent acts advocated by animal rights groups were sufficient evidence to establish that the disclosure of records containing information about facilities in which animal research was conducted would endanger security. (Orders #P-169, P-252, P-557)
  • A request for the floor plans of various government buildings was properly denied under ss.(1)(I). Disclosure of these records could seriously compromise security. (Order #P-217)
  • In this case, the records related to an incident that occurred over a year ago. This section was not satisfied in respect of current or future security where the records would reveal the assignment of a particular police officer to an area of a facility in the past. (Order #M-127)
  • The Commission did not accept that audit reviews of a computer system, developed to monitor claims and payroll, contained information that was exempt under this provision. The audit reviews did not comment on the function of the system itself and therefore any link between the disclosure of the reports and possible fraud was not reasonable. (Order #P-603)


  • Records containing an inventory of microcomputer equipment and maintenance agreements, regarding minicomputer equipment and electronic mail messages and regarding facsimile machines that contain the make, model, serial number and location of the equipment, were not accessible as a result of this exemption. The Commission was satisfied that the security of the computer systems and facsimiles could be infiltrated with the result that the systems could be disrupted. (Order #P-649)
  • Names of a research facility along with the type of species and number of animals used can be disclosed. However, information relating to the nature of research erformed or detailed descriptions of procedures and protocols for experiments and sacrifices falls under this provision. (Order #P-1392)

 
  • Records regarding names and Internet addresses for all computer network systems operated by several ministries were exempt under this provision. The items consisted of the data stored on Ontario government computers. The Commission held that this information required protection since much of it is sensitive and deals with personal information of members of the public. The system, established for the protection of this data, is the Ontario government's Internet gateway, which allows outside users access to the public section of the government's network but not the private section. (Order #P-756).
  • User names and names of individuals subscribed to each newsgroup falls under this provision. (Order #M-944)
  • In this case disclosure of information about the components, layout and programming of the automated systems at pumping stations which are used to control the mechanical equipment and alarm systems could reasonably be expected to cause probable harm. (Order #M-535)
  • Building plans submitted by a developer to a municipality for review prior to issuing a building permit under the Building Code which described the doors, areas of stores not accessible to the public, roof access, power supply locations, computer systems, telex and communications satellite, power drops, security systems, electrical switches and fire systems and alarms were exempt. (Order #M-520)
  • The operator identification code is one of the keys to the data protection system of the OHIP user registration database. Release of parts of this code could reasonably endanger the security of the system.(Order #P-1078)
  • The type of species and number of animals used for research purposes can be disclosed. However, names of the research facilities, information relating to the nature of research performed or detailed descriptions of procedures and protocols for experiments and sacrifices falls under this provision. (Order #P-1537) This decision quashes the precedential value of (Order #P-1392) which ordered release of facility names.


ss.(1)(i) and (l)



  • Information related to an alleged computer system transmission failure on a particular date, a listing of frequencies used by the police for data transmission, speed of modems, stop bit and parity, and all information relating to the use of computer services available in police vehicles kept by a police services board, were exempt under these provisions. (Order #M-329)


ss.(1)(j)

 

  • The term "facilitate" means to make easier or less difficult. The exemption applies to records concerning a maximum security institution, including construction plans, drawings for new windows and material to be used in construction such as locks and bars. The records in this regard need not be extremely detailed. (Order #P-187)
  • In this case, a handwritten diagram of the search area of a maximum security detention centre was not exempt under this provision. The Commission ruled that the diagram was not sufficiently detailed and that its disclosure could reasonably compromise the security of the facility or facilitate the escape from custody of an inmate of the facility. Mere possibility of harm is not sufficient. (Order #P-597)


ss.(1)(k)



  • Release of an in-house telephone directory, revealing names and phone numbers of staff and various departments, which are not normally available to the public, was exempt. It would jeopardize the security of the mental health centres, which are centres for lawful detention. (Order #P-77)
  • This exemption was upheld in respect of records created as a result of a law enforcement investigation into an incident that occurred in a correctional facility. The institution stated that the disclosure would reveal policies and procedures in place at the correctional facility, relating to inmate movement, contraband and searches. The information was not generally available to the public for security reasons. (Order #P-657)


ss.(1)(I), (j), (k)



  • The site plan of a correctional facility containing the grounds and buildings if disclosed could compromise security and was therefore exempt under these provisions. (Order #P-395)


ss.(1)(j), (k)



  • These provisions did not apply to directives or memorandums issued to correctional facilities that outlined the administrative procedures to follow relating to the discovery of contraband, such as who is to be notified and how records ought to be maintained and kept. The records did not deal with procedures to deal with the incident itself. (Order #P-686)

 

ss.(1)(l)



  • The disclosure of codes used by the police, which are used to ensure that information is passed efficiently from one police source to another and that anyone intercepting the message would be unable to determine the content or import of the message, may not be exempt under this provision. The Commission noted that in respect of this particular code, the police had failed to establish a clear and direct linkage between disclosure of the information and the harm alleged in this provision. (Order #M-199). However, where the police did provide sufficient evidence of harm, radio transmission ten codes, patrol zones and patrol car identification numbers, and rules and regulations governing the frequency of prisoner cell checks were exempt. (Order #M-757)
  • Police records regarding a chemical formula for manufacturing a well-known narcotic and the construction of explosive devices were held to be exempt under this provision. (Order #M-202)
  • In this case, the Commission was not satisfied that the disclosure of records referable to a police radio frequency would be exempt under this provision. (Order #M-267)
  • The disclosure of an internal police memorandum dealing with the approach taken by the police concerning the behavior known as "stalking" would not be covered by this exemption. The Commission found that the disclosure of this information, particularly in light of Bill C-126 that created the new offence of criminal harassment, would not result in individuals engaging in this activity. (Order #M-341)
  • A message code (sometimes referred to as a "ten-code") used by police officers in their communications with one another was exempt under this provision. The Commission found that disclosure of these codes could place the police officers in potentially dangerous situations or could facilitate the commission of unlawful acts. (Order #M-393)
  • The ability of the police to investigate and solve crimes would be adversely affected by the disclosure of the cellular telephone numbers and the names of those who use them, as well as the date, time, originating location and billed time for each call. The police provided sufficient evidence to demonstrate that there exists a reasonable expectation that the harm envisioned by this section would occur should this information be disclosed. However, the disclosure of the account and invoice numbers could not reasonably be expected to result in the facilitation of the commission of an unlawful act or interference with the control of crime by the police.(Order #M-552)
  • Cellular telephones are important police tools in the investigation and prevention of crime. If they become less available due to telephone lines being tied up with calls from the public, the police's ability to prevent and investigate crime could be hampered. In this case, the police supplied sufficient evidence to demonstrate that disclosure of the cellular telephone numbers and the names of those who use them could reasonably be expected to hamper the control of crime.(Order #M-554)
  • Codes that are related to the assignment of police officers to ensure that the patrol areas are adequately staffed at all times qualify for this provision.(Order # M-704)
  • Access codes for the Canadian Police Intelligence Computer (CPIC) fall under this provision. (Order #M-933)


ss.(2) General



  • This provision deals broadly with the confidentiality that necessarily surrounds law enforcement investigations in order that institutions charged with external regulatory activities can carry out their duties. Therefore, an internal investigation into program administration within a correctional facility is not included. (Order #P-98)
  • This exemption applies to records containing information regarding the exact location of archaeological sites which, if disclosed, could result in increased number of incidents of looting, thereby facilitating the commission of an unlawful act. (Order #P-885)
  • Information in a Police Call Taker Operations Manual such as the types of response units and their call signs and the priorities and classification of certain events are exempt. However, other information in the manual such as the organizational structure of a police communications centre, general rules and regulations, guidelines for taking information, questions to be asked and procedures for dispatching assistance are not exempt. (Order #M-761)


ss.(2)(a) Agency



  • Records derived from an internal investigation into the operation of a training school are not covered by this provision. Upon completion of the investigation, the ministry was not in a position to enforce or regulate compliance with the Training Schools Act or any other law. Rather, it determined that the allegations warranted further investigation and forwarded the report to the Crown attorney's office. As a result, the police force and the Crown attorney's office have the regulatory responsibilities envisioned by this section. (Orders #M-315)
  • Where, previously, the Superintendent of Insurance had the responsibility of supervising the business of insurance in Ontario and was obliged to see that the Insurance Act and regulations were enforced and obeyed, it was an agency that had the function of enforcing and regulating compliance with a law. (Order #P-304)
  • "Agency" includes organizations acting on behalf of or as agents for law enforcement agencies. Therefore, the Investment Dealers Association is an "agency" because the Ontario Securities Commission has informally delegated the investigatory function to it. (Orders #P-30, P-90, P-342)

 

  • Where the Ministry of Correctional Services conducts an investigation into a disturbance at a correctional facility, the resulting report is covered by this provision. (Order #P-250)
  • A municipality's Health Department is an agency that has the function of enforcing and regulating compliance with the Health Protection and Promotion Act. Health inspectors have statutory authority to enter premises where a health hazard exists to conduct tests, examinations, investigations and inquiries, and issue written orders to remedy any identified problems. Reports deriving from investigations in this regard are exempt under clause (2)(a). (Order #M-105)
  • The Loan and Trust Corporations Act (the LTCA) establishes the Ministry of Finance, through the Minister, the Superintendent of Deposit Institutions and the director, as the agency responsible for the regulation of registered trust and loan companies in Ontario. The Act provides for examinations, audits and inspections of registered corporations and for enforcement. In this case, a private audit firm was formally retained by the ministry. The Commission ruled that this exemption applied even though the records were prepared by an outside consultant. In this case, the ministry had the authority to obtain the private audit and to require the full co-operation of the corporation in the process. (Order #P-480)
  • The Toronto Stock Exchange (TSE) acted as the agent for the Ontario Securities Commission (OSC) in investigating a complaint made against the requester in this case. The OSC is an agency that has the function of enforcing and regulating compliance with the law and the records prepared by the TSE during the course of such an investigation satisfied the second and third parts of the test in this exemption. (Order #P-548)
  • The Public Complaints Commission is an agency that has the mandate to investigate possible infractions of the Police Services Act and it is therefore an agency which has the function of enforcing and regulating compliance with a law. (Order #P-659)
  • Investigations under the Real Estate and Business Brokers Act, undertaken by the institution's Real Estate Regulation Branch, were conducted by an "agency" which has the function of enforcing and regulating compliance with a law within the meaning of this provision. (Orders #P-621, P-670)


  • In order to apply, the records must have been prepared by an agency that has the function of enforcing and regulating compliance with a law. The Coroner's Act requires the Chief Coroner to prepare, publish and distribute a code of ethics for the guidance of coroners, but this code is not given the force of law. Therefore, it cannot be said to "enforce or regulate compliance with a law" within the meaning of this provision. (Order #P-1117) Furthermore, investigations by police carried out on behalf of the Coroner under the Coroner's Act do not satisfy this provision. (Order #M-818)


ss.(2)(a) "Report"

General

 

  • In order for a record to qualify for exemption under this