Both the Freedom of Information and Protection of Personal Information Act (FIPPA) and the Municipal Freedom of Information and Protection of Personal Information Act (MFPPA) contain a special exemption which applies mainly to law enforcement related records. The “Law Enforcement” exemption appears as section 14 of FIPPA and as section 8 of MFPPA.
In today’s article, I will provide an overview of the Law Enforcement disclosure exemption, explain why you should know it (even if your institution is seldom involved with law enforcement), and cover some of its more interesting features, including when it permits institutions to “refuse to confirm or deny the existence of a record”, and also why the public’s interest in the disclosure of records must be considered when using the Law Enforcement exemption, despite it not being included in the “public interest override” section of the Acts.
Overview
The first part of the Law Enforcement exemption, set out in FIPPA s.14(1) and MFIPPA s.8(1), permits institutions to refuse to disclose any record which could reasonably be expected to cause certain types of harm, such as compromising an ongoing investigation, revealing the identity of a confidential source, or putting at risk the personal security of a law enforcement officer or any other person.
The second part of the Law Enforcement exemption, set out in FIPPA s.14(2) and MFIPPA s.8(2), permits institutions to refuse to disclose certain types of law enforcement records, without the need to consider whether their disclosure could cause harm.
The types of records that an institution is allowed to refuse to disclose under this second part include:
- reports prepared in the course of law enforcement and inspections and investigations by enforcement and regulatory agencies (although this does not apply to reports produced in the course of “routine inspections” by a provincial agency)
- law enforcement records whose disclosure is prohibited by an Act of Parliament
- law enforcement records whose disclosure may expose the author or a person quoted within to civil liability; or
- a record that contains information about the history, supervision or release of a person under the control or supervision of a correctional authority.
The Law Enforcement exemption also allows institutions to refuse to confirm or deny the existence of a record to which one of the parts above applies, per FIPPA s.14(3) / MFIPPA s.8(3). (More on this below.)
Subsections 4 and 5 of the exemption are carve-outs: reports of “routine inspections” generally do not fall under the Law Enforcement exemption. Neither do records or assessments of the success of a law enforcement program, including statistical analyses, unless disclosing the record may “prejudice, interfere with or adversely affect” any of the matters referred to in subsections 1 and 2.
The Wording of the Exemption
The exemption is identical in both Acts. The full wording of the Law Enforcement exemption is as follows:
Law Enforcement
(1) A head may refuse to disclose a record where the disclosure could reasonably be expected to,
(a) interfere with a law enforcement matter;
(b) interfere with an investigation undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result;
(c) reveal investigative techniques and procedures currently in use or likely to be used in law enforcement;
(d) disclose the identity of a confidential source of information in respect of a law enforcement matter, or disclose information furnished only by the confidential source;
(e) endanger the life or physical safety of a law enforcement officer or any other person;
(f) deprive a person of the right to a fair trial or impartial adjudication;
(g) interfere with the gathering of or reveal law enforcement intelligence information respecting organizations or persons;
(h) reveal a record which has been confiscated from a person by a peace officer in accordance with an Act or regulation;
(i) endanger the security of a building or the security of a vehicle carrying items, or of a system or procedure established for the protection of items, for which protection is reasonably required;
(j) facilitate the escape from custody of a person who is under lawful detention;
(k) jeopardize the security of a centre for lawful detention; or
(l) facilitate the commission of an unlawful act or hamper the control of crime.
Idem
(2) A head may refuse to disclose a record,
(a) that is a report prepared in the course of law enforcement, inspections or investigations by an agency which has the function of enforcing and regulating compliance with a law;
(b) that is a law enforcement record where the disclosure would constitute an offence under an Act of Parliament;
(c) that is a law enforcement record where the disclosure could reasonably be expected to expose the author of the record or any person who has been quoted or paraphrased in the record to civil liability; or
(d) that contains information about the history, supervision or release of a person under the control or supervision of a correctional authority.
Refusal to confirm or deny existence of record
(3) A head may refuse to confirm or deny the existence of a record to which subsection (1) or (2) apply.
Exception
(4) Despite clause (2) (a), a head shall disclose a record that is a report prepared in the course of routine inspections by an agency where that agency is authorized to enforce and regulate compliance with a particular statute of Ontario.
Idem
(5) Subsections (1) and (2) do not apply to a record on the degree of success achieved in a law enforcement program including statistical analyses unless disclosure of such a record may prejudice, interfere with or adversely affect any of the matters referred to in those subsections.
Freedom of Information and Protection of Personal Information Act, s.14
Municipal Freedom of Information and Protection of Personal Information Act, s.8
What are the goals of the exemption?
It would appear that one purpose of the Law Enforcement exemption is to prevent potential lawbreakers from circumventing law enforcement by obtaining the details of ongoing and past investigations. For example, subsections (1)(a) and (b) allow institutions to refuse to disclose any records that may interfere with a law enforcement matter or any investigation that is likely to progress to a law enforcement proceeding. The Law Enforcement exemption seems to accept that law enforcement agencies require a certain level of secrecy and confidentiality in order to be effective, and that law enforcement matters would be frequently compromised if exposed to the same level of disclosure as generally applies to the records of public institutions.
Additionally, the Law Enforcement exemption provides breathing room for inspectors who prepare reports in regard to special inspections, and for anyone who provides tips or other information to assist in law enforcement matters.
Finally, the exemption provides protection for the physical security of persons, property, and correctional facilities. Subsections (1)(e) allows an institution to refuse to disclose information that may put a law enforcement officer “or any other person” at risk; subsection (1)(i) allows withholding information that may endanger the security of a building for which protection is reasonably required; and subsections (1)(j) and (k) protect the disclosure of information that may facilitate the escape from custody of a person, and the security of detention centres.
Who can use the exemption?
The “Law Enforcement” exemption does not require the institution applying the exemption to be a police service or another law enforcement institution. The only requirement is that the disclosure of the records be reasonably expected to cause one of the harms set out in part 1 of the exemption, or be one of the types of records listed under part 2 of the exemption.
Both the adjudication decisions of the Information and Privacy Commissioner of Ontario as well as the Year-End Statistical Report make it clear that the Law Enforcement exemption is employed most frequently by the Ministry of Community Safety and Correctional Services (whose responsibilities include maintaining Ontario’s correctional institutions, probation and parole offices as well as overseeing policing services throughout Ontario), the Ontario Provincial Police, and by Ontario’s various municipal police forces. However, the exemption has been successfully employed by other kinds of institutions as well, including:
- City of Hamilton (Order MO-2715) who relied on the exemption to refuse disclosure of documents relating to its Red Light Camera Program
- Town of Whitby (Order M-147) who relied on the exemption to refuse to disclose information relating to complaints received by the Town about the requester’s property
- Ministry of Health (Order P-324) who relied on the exemption to refuse to disclose information relating to inducements offered by drug manufacturers to pharmacists for the purchase of products listed in the Ontario Formulary; and
- Ministry of the Environment (Order PO-3126) who relied on the exemption to refuse to disclose records pertaining to an investigation conducted by the Ministry with respect to drinking water
Endangerment to Life or Physical Safety
Subsection (1)(e) states that “A head may refuse to disclose a record where the disclosure could reasonably be expected to … endanger the life or physical safety of a law enforcement officer or any other person”. Notably, there is no requirement that the record itself be related to law enforcement.
In Order P-1499 (Ministry of Health), the Information and Privacy Commissioner of Ontario (IPCO) found that this subsection applied with respect to information about the number of abortions performed at various health care facilities, because its disclosure could subject specific individuals to harassment and/or violence.
Then, in Order PO-1817-R (Ministry of the Attorney General), IPCO clarified that the term “person” is not limited to an “identifiable individual”, but must be read to mean any individual, including any member of an identifiable group.
The “Endangerment to Life or Physical Safety” exemption under FIPPA s. 14(1)(e) / MFIPPA s. 8(1)(e) seems closely related to the “Danger to Safety or Health” exemption under FIPPA s. 20 / MFIPPA s. 13, which states: “A head may refuse to disclose a record where the disclosure could reasonably be expected to seriously threaten the safety or health of an individual”.
That said, the “Endangerment to Life or Physical Safety” is presumably of greater applicability for “security” type issues, that is, where the primary concern is that actual violence may be a potential consequence of the disclosure. Additionally, the absence of the words “seriously threaten” in the “Endangerment to Life or Physical Safety” exemption may serve to increase its applicability. In many situations, an institution may wish to cite both exemptions as a “belt-and-suspenders” approach in order to reduce the likelihood of the institution’s decision to withhold records being overturned on appeal.
Refusal or Confirm or Deny Existence of a Record
Subsection 3 of the the Law Enforcement exemption contains an interesting provision: the ability to refuse to confirm or deny the existence of a record.
Normally, when an FOI request is made, the institution is expected to send the requestor a decision letter which describes all of the records that are responsive to the request, regardless of whether the institution has decided to disclose such records. (For more details, see Are Your Written Notices Defective?)
However, in the case of records to which the Law Enforcement exemption applies, mere confirmation of the existence (or non-existence) of certain records may be sufficient to harm an investigation or to impair the security or safety of a person or property. Therefore, the Law Enforcement section includes a special provision which allows the institution to simply refuse to confirm or deny that the requested records exist.
As an example, if a requestor were to ask for any records relating to any investigations of the requestor’s potential wrongdoing with respect to a particular incident, the institution could respond by advising the requestor that, in accordance with subsection 3 of FIPPA s.14 or MFIPPA s.8, the institution will not confirm or deny the existence of any such records.
A similar “refuse to confirm or deny” clause exists under FIPPA s.21 / MFIPPA s.14, the personal privacy exemption, for similar reasons: sometimes, even revealing whether or not a record exists would violate the personal privacy of an individual.
Public Interest Override
The Law Enforcement exemption is not included in the list of exemptions to which the the Public Interest Override set out in FIPPA s. 23 / MFIPPA s. 16 applies. However, the Supreme Court of Canada has indicated that because institutions retain discretion over whether disclose records under the Law Enforcement exemption, “to properly exercise this discretion, the head must weigh the considerations for and against disclosure, including the public interest in disclosure,” even when such disclosure could interfere with a law enforcement matter.
As explained by the Court:
The public interest override in s. 23 would add little to this process. Section 23 simply provides that exemptions from disclosure do not apply “where a compelling public interest in the disclosure of the record clearly outweighs the purpose of the exemption”. But a proper interpretation of s. 14(1) requires that the head consider whether a compelling public interest in disclosure outweighs the purpose of the exemption, to prevent interference with law enforcement. If the head, acting judicially, were to find that such an interest exists, the head would exercise the discretion conferred by the word “may” and order disclosure of the document.
Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, para 49
(For more details, see Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23, especially paras. 46-52).
Conclusion
Even if your institution does not regularly deal with law enforcement matters, you should still be familiar with the Law Enforcement exemption. Any institution can find itself dealing with law enforcement issues or wind up with custody or control of records relating to a criminal investigation. Further, some parts of the exemption go beyond law enforcement matters, such as “Endangerment to Life or Physical Safety”, which potentially applies to a wide variety of requests. When reviewing a decision, IPCO is unlikely to consider any exemptions that the institution itself hasn’t cited explicitly. By learning about a wide variety of exemptions, including the Law Enforcement exemption, and doing your best to cite every applicable exemption in your decision letter, your decisions will be more likely to withstand potential challenges and survive on appeal.
Resources
Freedom of Information and Protection of Privacy Act (FIPPA) https://www.ontario.ca/laws/statute/90f31
Municipal Freedom of Information and Protection of Privacy Act (MFIPPA) https://www.ontario.ca/laws/statute/90m56
Ontario (Public Safety and Security) v. Criminal Lawyers’ Association, 2010 SCC 23
IPCO: Decisions https://decisions.ipc.on.ca/ipc-cipvp/en/nav.do
FOI Assist 