H.W. Osmond Doyle, LL.B., LL.M.

City Solicitor

Legal Services

55 John Street

Stn.1260, 26th Flr., Metro Hall

December 7, 1998 Toronto ON M5V 3C6

Tel: (416) 392-8047

Fax: (416) 392-3848

To:Emergency and Protective Services Committee

From:H.W.O. Doyle

City Solicitor

Subject:Legal Validity of Toronto Licensing Commission Obtaining Personal Information in the Possession of the Toronto Police Service

Purpose:

The purpose of this report is to respond to the request of the Emergency and Protective Services Committee for an opinion on the "legal validity of Toronto Licensing obtaining Police information in regard to charges laid against a license holder or applicant."

Funding Sources, Financial Implications and Impact Statement:

N/A

Recommendations:

It is recommended that this report be received for information.

Council Reference/Background/History:

At its meeting held on June 16, 1998, the Emergency and Protective Services Committee had before it a communication, dated June 2, 1998, from Councillor Dennis Fotinos. Among other things, this communication requested that the City Solicitor report on the "legal validity of Toronto Licensing obtaining Police information in regard to charges laid against a license holder or applicant." The Committee referred that request to the City Solicitor for a report.

Comments and/or Discussion and/or Justification:

Both the ability of the Toronto Licensing Commission (the "Commission") to obtain the production of the relevant information, and the ability of the Toronto Police Service (the "Service") to disclose that information, are governed by the terms of the Municipal Freedom of Information and Protection of Privacy Act ("MFIPPA").

The type of information identified by Councillor Fotinos would constitute personal information under MFIPPA. Subsection 2(1) of MFIPPA generally defines "personal information" as recorded information about an identifiable individual. This general definition of personal information also specifies certain types of information that are included within it. Information regarding charges laid against a license holder or applicant is recorded information regarding an identifiable individual. The Ontario Information and Privacy Commissioner (the "IPC") has held in similar situations that a record of charges being laid constitutes personal information.

In light of this, there are two ways in which the Commission could seek access to the relevant information. These are:

1.The Commission could request the Service for access to the information under Part I of MFIPPA, in the same manner as any other person. If a request is denied, the Commission could appeal that decision to the IPC.

2.Part II of MFIPPA confers a discretionary power on the institution in possession of personal information to disclose it if certain statutory criteria are met. Under this Part, there is no formal request for disclosure and no right of access is created. This is a voluntary and discretionary power that the Service could use to disclose personal information in circumstances authorized by MFIPPA.

1.Right of Access to Personal Information Record

Subsection 4(1) of MFIPPA confers a right on all persons to gain access to a record in the custody or control of an institution. The Commission has a right of access to a record.

Sections 6 through 15 of MFIPPA set out a variety of exceptions to the general right of access established by subsection 4(1).

In particular, subsection 14(1) of MFIPPA sets out a general principle of mandatory non-disclosure of personal information in the custody of a public institution in response to an access request. There are limited statutory exceptions to this principle establishing when an institution may disclose personal information in response to a request, the application of which will vary depending on the circumstances of the individual case. If the Commission's request were to fall within an exception, it would have a right of access to the information. In the event the Service denied the request, the Commission could appeal that decision to the IPC.

Subsection 8(1) of MFIPPA is another possible exemption that may be applicable to deny a Commission request for access to a record. This section confers on the Service the discretion to deny disclosure of records for the specified reasons pertaining to law enforcement. In particular, clauses 8(1)(a) and (b) are relevant in that they allow an institution to deny disclosure of a record if it could reasonably be expected to interfere with a law enforcement matter or interfere with an investigation undertaken with a view to a law enforcement proceeding.

Therefore, the Commission can make a request for access to the Service. The analysis of whether the Commission is entitled to access will depend on the circumstances of each case.

2.Discretionary Power to Disclose Personal Information

Section 32, contained in Part II of MFIPPA, governs the daily and voluntary disclosure of personal information by institutions in administering their public responsibilities in the absence of a formal request for such information under Part I of MFIPPA, discussed above. Disclosure of personal information pursuant to section 32, is discretionary and voluntary on the part of the institution in possession of the information. It does not create a right of access. Section 32 prohibits disclosure of personal information except in the circumstances set out in the section.

The Commission may fall within the exception to non-disclosure set out in clause 32(f)(ii) which authorizes a law enforcement institution to disclose personal information to another law enforcement agency in Canada. Clearly, the Service is a law enforcement institution. There have also been orders of the IPC in which the Commission's by-law enforcement process has been held to be a "law enforcement" proceeding. Therefore, there is an argument that, at least with respect to the enforcement of the licensing by-law, the Commission may be considered a "law enforcement agency" for the purposes of clause 32(f)(ii) of MFIPPA. This conclusion would permit disclosure of personal information by the Service to the Commission, at the Service's election.

The exception contained in subsection 32(g) of MFIPPA may also apply. This exception allows disclosure to "an institution or a law enforcement agency in Canada to aid an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result." The IPC has held that a by-law enforcement process does qualify as a "law enforcement" proceeding or matter. Therefore, if the Commission can establish that the information requested is for the purpose identified in the subsection, disclosure would again be permitted, at the Service's election.

Thus, it is possible that the Service can disclose information to the Commission under clause 32(f)(ii) or subsection 32(g). However, this would be a voluntary disclosure by the Service and the Commission cannot compel the Service to disclose records under section 32.

It should be noted that the IPC has held in recent decisions that section 32 is not relevant when considering a request for access under Part I of MFIPPA.

Conclusions:

Generally, MFIPPA prohibits the disclosure of personal information. However, the Commission can request access to records under subsection 4(1) of MFIPPA. This request for access can only be assessed on a case-by-case basis. The Commission can also receive information from the Service based on the Service's discretionary power to disclose information under section 32 of MFIPPA. Section 32 only confers a discretionary power and the Commission cannot compel the Service to disclose personal information under that section.

Contact Name:

Albert H. Cohen

Director, Litigation

Legal Division

(392-8041)

H.W.O. Doyle

City Solicitor