Order 96-006: Summary
Note: This Order underwent judicial review in December 1996 and was upheld. See judgment (pdf file, 27 KB).
DATE: July 9, 1996
PUBLIC BODY: Alberta Justice
FOIP REQUEST: The applicant requested access to transcripts of an investigation and final findings concerning an attempted escape from the Edmonton Remand Centre. The responsive records contained personal information of the applicant and other individuals. Justice disclosed some information, but withheld some information relating to the investigation of the applicant, which had resulted in disciplinary action. The applicant asked the Information and Privacy Commissioner to review the matter.
ISSUES: Justice submitted that it had properly withheld the records under the exceptions for personal privacy of a third party, law enforcement and advice from officials.
DECISION AND REASONS:
- The Commissioner found that Justice had correctly applied the exception for personal privacy (section 16) to some of the information in the withheld records. He noted that incident reports could not be entirely personal information, since corrections staff and management prepared the reports in the course of their employment and as part of their employment responsibilities, rather than in their personal capacity.
- The Commissioner rejected the argument by Justice that personal information was properly excepted as an identifiable part of an investigation into a possible violation of law (section 16(2)(b)). He held that the terms "law" and "law enforcement" encompass the notion of a violation of a statute or regulation and a penalty or sanction imposed under that same statute or regulation. The investigation of a Corrections officer's performance of his employment duties would not be an investigation into a violation of the law because those employment duties are not set out by a law that provides for penalties or sanctions if the duties are breached.
- The Commissioner found that names in the records were properly withheld under section 16(2)(g), and the employment history of third parties was correctly withheld under section 16(2)(d). The fact that some personal information had been supplied in confidence was a relevant circumstance (section 16(3)(f)) that applied to the extent that the identities of the third parties could be withheld.
- The Commissioner found that Justice had not properly applied the exception for law enforcement information (section 19(1)). He said that, to fall within the definition of law enforcement, an investigation must have the potential to result in a penalty or sanction imposed under a statute or regulation, such as imprisonment or a fine, the revocation of a licence or an order requiring a person to cease an activity. The Commissioner noted in a postscript that not everything that Justice does can automatically be considered to be "law enforcement." He also observed that the records under consideration were produced in an investigation that resulted in disciplinary action, and that fairness demands that an investigated person be given as much disclosure of the records as possible. The Commissioner agreed with Ontario Order P-597 that disclosure should be more extensive if an investigation is likely to result in discipline.
- The Commissioner found that Justice had not correctly applied the exception for advice from officials (section 23(1)). Noting that the objective of the exception is "to protect the free flow of advice and recommendations within the deliberative process of government decision- or policy-making" (Ontario Order M-457), the Commissioner held that, for this exception to apply, the advice should be:
- sought or expected, or be part of the responsibility of a person by virtue of that person's position; - directed toward taking an action; and - made to someone who can take or implement the action.
- Some information withheld under section 23(1)(a) consisted of summaries of information relating to the escape attempt and the subsequent investigation and, as they were not directed towards taking an action, did not meet the test for advice. Other information withheld under this provision consisted of instructions or guidelines issued to officers or employees of a public body. That information cannot be withheld under this exception (section 23(2)(f)).
- The Commissioner found that Justice had not correctly applied the exception for consultations and deliberations (section 23(1)(b)). The purpose of this provision is to allow persons listed in this provision to address an issue without fear of being wrong, looking bad or appearing foolish if their frank deliberations were to be made public. A "consultation" occurs when the views of one or more officers or employees is sought as to the appropriateness of particular proposals or suggested actions. A "deliberation" is a discussion or consideration, by the persons listed in section 23(1)(b)(i) to (iii), of the reasons for and against an action. The same criteria as for "advice" must be satisfied in order for this exception to apply.
Justice was ordered to disclose additional information.
The Commissioner emphasized in a postscript that it is important for public bodies to provide detailed evidence of their reasons for refusing access to information in order to discharge their burden of proof.
SECTOR: Government - Other