Order F2005-001: Summary
DATE: February 16, 2005
PUBLIC BODY: Calgary Police Service and Alberta Justice
FOIP REQUEST: The applicant made an access request to the Calgary Police Service (CPS) for records related to the death of her son. CPS released a severed police report and a portion of the investigative file, but withheld 137 pages of records, audiotapes, a videotape and a CD under various exceptions to disclosure. CPS transferred a portion of the access request to Alberta Justice. Justice released the medical examiner records but withheld a Crown Prosecutor memo. The applicant asked the Information and Privacy Commissioner to review the decisions of CPS and Justice. In making its initial submission to the inquiry, CPS inadvertently released to the applicant some of the records at issue.
ISSUES: CPS submitted that it properly withheld records under the exceptions to disclosure for legal privilege, unreasonable invasion of third party personal privacy, law enforcement, and intergovernmental relations. Justice submitted that the Crown Prosecutor's memo was subject to legal privilege. The applicant submitted that additional persons should have been named as affected parties in the inquiry. The applicant further submitted that her request for review should not have been severed before it was given to the affected parties, and that the affected parties should have been given access to correspondence generated during the access and review process. As a result of CPS's disclosure of third party personal information, the issue of whether CPS had contravened Part 2 of the FOIP Act was added to the inquiry.
DECISION AND REASONS:
- In a preliminary matter, the Adjudicator stated that the commencement of a formal internal review by CPS into the investigation of the death of the applicant's son did not preclude the Commissioner's Office from proceeding with the inquiry.
- The Adjudicator noted that section 67(1) allows the Commissioner to give a copy of the request for review to any other person who, in the Commissioner's opinion, is affected by the request. In this case, the Commissioner's discretion was exercised to notify the accused as well as civilian witnesses. Other individuals named in the police report were determined not to be affected parties.
- The Adjudicator explained that the applicant's personal information, including her opinions, health concerns and contact information, was severed from her request for review before copies of the request were sent to affected parties. This was done under the authority of section 67(2) to protect the applicant's privacy. The Adjudicator also noted that section 67 specifies what information is to be provided to affected parties and that section 59 prohibited the Commissioner from disclosing the letters generated during the access and review process.
- Citing Order 96-017, the Adjudicator found that CPS and Alberta Justice properly exercised their discretion under section 27(1)(b) to withhold portions of the CPS investigative file and the criminal prosecutor's memo, as being records related to legal services.
- The Adjudicator found that the audio and video tapes, the CD, and portions of the police report and investigative file contained third party personal information. Because the personal information included the names of third parties in combination with other personal information or the names would reveal other personal information about the parties, section 17(4)(g) applied to create a presumption that disclosure would be unreasonable. Citing Order 98-007, the Adjudicator found that a number of the records had been submitted to CPS in confidence. This factor weighed against disclosure of those records (section 17(5)(f)).
- The Adjudicator found that the applicant failed to prove that the disclosure of the third party personal information would not be an unreasonable invasion of privacy, as required by section 71(2). Citing Order 97-002, the Adjudicator rejected the applicant's claim that the adverse effect on the applicant's health by the denial of access to the records constituted a "compelling circumstance affecting anyone's health" within the meaning of section 17(2)(b). Referring to Order 99-028, the Adjudicator reiterated that a fair determination of an applicant's rights (section 17(5)(c)) relates to the determination of a legal right under statute or common law. The provision does not apply when an applicant, as in this case, merely claims a moral right to the information. Referring to Order 97-002, the Adjudicator found that section 17(5)(g) did not apply. The Adjudicator noted that this provision is concerned with whether comments were accurately recorded, rather than the accuracy of comments themselves.
- The Adjudicator found that the names and identification number of individuals working for CPS was not information submitted in confidence (section 17(5)(f)), but was information related to employment. The disclosure of this information would not be an unreasonable invasion of those third parties' personal privacy.
- The Adjudicator found that CPS properly applied section 20(1)(m) to withhold certain records. Disclosure of these records could be expected to harm the security of communications systems and codes used by CPS. Citing Orders and 2000-027, the Adjudicator found that one page of records, detailing what was contained in a Defense disclosure package, was improperly withheld under subsections 20(1)(c) and (d). Citing Order 2001-037, the Adjudicator determined that this page also did not fall within the exception to disclosure for intergovernmental relations (section 21).
- The Adjudicator found that CPS contravened Part 2 of the Act by disclosing some of the records at issue to parties to the inquiry during the exchange of submissions. CPS was able to regain possession of the records within two hours of notification of the disclosure and notified the affected parties of what personal information had been disclosed. The Adjudicator ordered CPS to take greater care in preparing its submissions for an inquiry and to put proper procedures in place to ensure a similar disclosure does not occur in the future.
The decision of Alberta Justice was upheld. CPS was ordered to disclose certain records and to use greater care in preparing future submissions to avoid further privacy breaches.
SECTOR: Police Service and Government - Departments