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ManualLaw Enforcement s.14 FIPPA / s.8 MFIPPAThis section contains the following topics: Reveal Investigative Techniques Safety of a Law Enforcement Officer Fair Trial of Impartial Adjudication Other Law Enforcement Exemptions Refusal to Confirm or Deny the Existence of a Record Exceptions to Exemption for Law Enforcement
SummaryThis section provides a discretionary exemption for records relating to police and by-law enforcement investigations and certain other investigative, adjudicative and protective functions.
Law enforcement is defined in s.2(1)
of the Act. The phrase not only includes policing activities and
prosecutions, but also investigations, or inspections that lead or could
lead to proceedings in a court or tribunal if a penalty or sanction could
be imposed. This definition encompasses the enforcement of federal and
provincial statutes and municipal by-laws. Law enforcement investigations
do not include internal employment-related investigations for other than
violations of the law.
The term "could reasonably be expected to" as used in this section requires that the expectation of the harm coming to pass should the record be disclosed, not be fanciful, imaginary or contrived, but based on reason. An institution must establish a clear linkage between the disclosure of the information and the harm alleged. The compelling public interest override in s.23 Freedom of Information and Protection of Privacy Act (FIPPA) / s.16 Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) does not apply to this exemption.
Law Enforcement Matters.14(1)(a)
FIPPA / s.8(1)(a)
MFIPPA This exemption applies if disclosure could reasonably be expected to
interfere with a law enforcement matter. To interfere with a law
enforcement matter means that the disclosure would have the effect of
hindering or impeding the conduct of a proceeding or the carrying out of a
law enforcement activity. Law Enforcement Investigations.14(1)(b)
FIPPA / s.8(1)(b)
MFIPPA An institution may refuse to disclose a record where the disclosure
could reasonably be expected to interfere with an investigation undertaken
with a view to a law enforcement proceeding or from which a law
enforcement proceeding is likely to result. An "investigation"
is the methodical determination of facts and gathering of evidence. In
some cases, the evidence gathered in an investigation will be insufficient
to support the commencement of a proceeding in a court or tribunal. A
record of the investigation could still be exempt, however, since it is
undertaken with a view to a law enforcement proceeding. For example:
"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. Reveal Investigative Techniquess.14(1)(c)
FIPPA / s.8(1)(c)
MFIPPA This subsection applies where disclosure could reasonably be expected to reveal investigative techniques and procedures in use or likely to be used in law enforcement. The IPC has found that successful application of this exemption requires the institution to demonstrate that disclosure of the technique or procedure to the public would hinder or compromise its effective utilization. If the technique or procedure is generally known, or such that a lay person would expect, reliance on this exemption would not be successful. For example:
Reveal a Confidential Sources.14(1)(d)
FIPPA / s.8(1)(d)
MFIPPA Disclosure may be refused where it would reveal the identity of a
confidential source of information in respect of a law enforcement matter,
or disclose information furnished only by the confidential source.
Safety of a Law Enforcement Officers.14(1)(e)
FIPPA / s.8(1)(e)
MFIPPA Disclosure may be refused where it would endanger the safety of a law
enforcement officer or any other person. Section 20 FIPPA / s.13 MFIPPA
also apply where disclosure of a record could reasonably be expected to
seriously threaten an individual's health or safety. Fair Trial or Impartial Adjudications.14(1)(f)
FIPPA / s.8(1)(f)
MFIPPA This exemption prevents premature disclosure of information that could
deprive a person of a fair trial or impartial adjudication. Once the
proceeding has been completely disposed of (including appeals), the
exemption no longer applies. In order to demonstrate unfairness under this
subsection, the institution must produce more evidence than the mere
commencement of a legal action. The institution must present specific
arguments as to how or why disclosure of specific parts of the record
could reasonably be expected to deprive a person of a fair trial. Intelligence Informations.14(1)(g)
FIPPA / s.8(1)(g)
MFIPPA This subsection exempts from disclosure records where the disclosure could reasonably be expected to interfere with the gathering of or reveal law enforcement intelligence information respecting organizations or persons. "Intelligence information" is gathered because it may be
useful for future investigations. It may also be used for activities aimed
at preventing the commission of an offence and for the purpose of ensuring
the security of individuals or organizations including institutions
covered by the Act. Intelligence information may be derived from previous
investigations which may or may not have resulted in the commencement of
proceedings against a person or organization. It may also be gathered
through observing the conduct of associates of known criminals and through
other activities. Confiscated Recordss.14(1)(h)
FIPPA / s.8(1)(h)
MFIPPA This exemption applies where disclosure could reasonably be expected to
reveal records confiscated by a peace officer in accordance with an act or
regulation. Endanger the Securitys.14(1)(i)
FIPPA / s.8(1)(i)
MFIPPA Disclosure may be refused where it could reasonably be expected to
endanger the security of a building or the security of a vehicle carrying
items (e.g., things or articles), or of a system or procedure established
for the protection of items, for which protection is reasonably required.
The exemption is qualified by the requirements that the protection be
reasonably required. Facilitate Escapes.14(1)(j)
FIPPA / s.8(1)(j)
MFIPPA Records are exempt where the disclosure could reasonably be expected to facilitate escape from custody of a person who is under lawful detention. Custody indicates that an individual is not free to leave a place of confinement without restriction. In general, any person held in custody pursuant to a valid warrant or other authorized order is under lawful detention. The term "facilitate" means make easier or less difficult. The exemption applies to construction plans and specifications regarding a maximum security facility. It is not necessary that the plans be extremely detailed. The fact that the plans for the secured facility were available to the
public in the past does not mean that this section requires that they
continue to be available. It is appropriate to limit access to records for
security reasons. Centre for Lawful Detentions.14(1)(k)
FIPPA / s.8(1)(k)
MFIPPA This provision exempts records where disclosure could reasonably be
expected to jeopardize the security of a centre for lawful detention. This
includes records containing details of previous investigations of escape
attempts and details of security measures in place. Unlawful Acts.14(1)(l)
FIPPA / s.8(1)(l)
MFIPPA Records are exempt where the disclosure could reasonably be expected to
facilitate the planning or committing of an unlawful act or hamper the
control of a crime. "Unlawful act" means a contravention of a
statute or regulation or of a municipal by-law. Other Law Enforcement Exemptions
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