New IPCO Guidelines for the Law Enforcement Exemption

The Information and Privacy Commissioner of Ontario (IPCO) has released a new interpretation bulletin providing key guidance and case citations for institutions applying the Law Enforcement exemption under Ontario’s access to information legislation.

The Law Enforcement exemption is found in section 14 of the Freedom of Information and Protection of Privacy Act (FIPPA) and section 8 of the Municipal Freedom of Information and Protection of Privacy Act (MFIPPA). While the Law Enforcement exemption was previously covered here on the FOI Assist Knowledge Base, this new interpretation bulletin (the “Bulletin”) offers fresh insights and is likely to influence IPCO’s approach in future appeals.

A Discretionary and Limited Exemption

The Bulletin emphasizes that the Law Enforcement exemption is discretionary and intended to be limited and specific. Importantly, discretionary does not mean institutions can apply the exemption at will. Instead, institutions should be prepared to:

1. Demonstrate that the exemption applies to the requested records, and
2. Show that the institution’s head or delegate properly exercised their discretion in applying it.

IPCO retains the authority to review whether an institution misapplied or improperly exercised its discretion in withholding records.

Law Enforcement: More Than Policing

Both FIPPA and MFIPPA define law enforcement under section 2(1) to include:

• Policing
• Investigations or inspections that could lead to court or tribunal proceedings where a penalty or sanction may be imposed
• The conduct of such proceedings

The Bulletin provides examples of investigations and inspections found to meet the definition of law enforcement, including investigations conducted by:

• Municipalities (e.g., City of Oshawa and Town of Ajax)
• The Ontario Human Rights Commission
• The Children’s Aid Society
• The Alcohol and Gaming Commission of Ontario

Conversely, the following have been found not to constitute law enforcement under FIPPA/MFIPPA:

• A Coroner’s investigation
• Internal employee investigations (unless in the course of regulating compliance with a law)
• Student disciplinary investigations

Assessing Harm

Many provisions of the Law Enforcement exemption allow institutions to refuse to disclose a record if such disclosure could reasonably be expected to cause harm to a law enforcement matter, or some other negative consequence. However, the Bulletin notes that institutions cannot simply assert such harms are “obvious”. Rather, they should be prepared to “provide detailed evidence about the risk of the harm if the record is disclosed”.

Guidance on Subsections (1) and (2)

The first two subsections of the Law Enforcement exemption provide sixteen different reasons institutions may rely on to withhold records from disclosure. Subsection (1) deals mainly with situations that could reasonably be expected to lead to a harm or negative consequence. Subsection (2) identifies specific categories of records that may be withheld under the Law Enforcement exemption based on their nature, with less emphasis on the potential harm of disclosure.

The Bulletin provides detailed guidance on each paragraph within the first two subsections of the Law Enforcement exemption and presents an invaluable collection of IPCO decisions that interpret and apply each provision.

Subsection (3): Refusal to Confirm or Deny the Existence of a Record

Next, the Bulletin analyzes subsection (3) of the Law Enforcement exemption, which allows institutions to refuse to confirm or deny the existence of a record if subsection (1) or (2) applies. This section of the Bulletin warrants closer examination, as its guidance appears somewhat “aspirational”, potentially advocating for a more restrictive interpretation of subsection (3) than is supported by the language of the exemption itself.

Framing IPCO’s position on the subsection (3) exemption, the Bulletin states that it is “rare” that merely confirming the existence of a record would “prevent an ongoing investigation or intelligence-gathering activity from continuing.” Yet this framing may set an artificially high threshold for the application of subsection (3). The plain language of the statue does not require that disclosing the existence of a record would prevent an investigation from proceeding—rather, it merely states that such disclosure must be reasonably expected to interfere with a law enforcement matter (among many other potential justifications). This is a meaningful distinction, as “interference” does not necessarily mean complete obstruction but may include delays, complications, or compromises to investigative effectiveness.

The Bulletin cites two decisions in support of this framing. The first decision cited, Order P-255, actually upheld an institution’s decision to refuse to confirm the existence of a record. In an unusual postscript to the decision, the adjudicator then elaborated that it would be “rare” for merely confirming the existence of a record to “frustrate” (not “prevent”) an ongoing investigation or intelligence-gathering activity.

The second decision cited, Order PO-1656, also upheld an institution’s refusal to confirm or deny the existence of a record, specifically considering whether such disclosure would “interfere with” (again, not “prevent”) an investigation.

In its next paragraph, the Bulletin states that institutions wishing to rely on section 14(3) of FIPPA or section 8(3) of MFIPPA must demonstrate both of the following:

1. The record qualifies under the Law Enforcement exemption under subsections (1) or (2).
2. Disclosure of the fact that a record exists (or does not exist) would itself convey information that could reasonably be expected to compromise the effectiveness of an existing or reasonably contemplated law enforcement activity.

The first requirement is derived directly from the wording of subsection (3) of the exemption. In contrast, the second requirement does not appear to be based on the wording of the exemption. As authority for the second requirement, the Bulletin cites Order PO-1656.

As previously noted, Order PO-1656 actually upheld an institution’s application of subsection (3). Order PO-1656 itself references Order P-344, which appears to be the original source of the language of the second requirement. However, Order P-344 is yet another decision upholding an institution’s discretion to rely on section 14(3) of FIPPA. The Bulletin does not appear to cite any decisions in which the second requirement was applied to overturn an institution’s reliance on subsection (3).

The Bulletin’s second requirement for institutions seeking to rely on subsection (3) of the Law Enforcement Exemption to refuse to confirm or deny the existence of a record appears impose an artificial limitation on sections 14(3) of FIPPA and 8(3) of MFIPPA that is not found in the statutory language. A plain reading of the statute suggests that an institution may refuse to confirm or deny the existence of a record under subsection (3) of the Law Enforcement exemption if doing so would, for example:

• Interfere with a law enforcement matter (not “prevent,” “frustrate,” or “compromise” a law enforcement matter, which would impose a significantly higher threshold) (subsection (1)(a)).
• Reveal investigative techniques and procedures (without requiring proof that they would be “compromised”) (subsection (1)(c)).
• Interfere with the gathering of or reveal law enforcement intelligence information (subsection (1)(g)).

Furthermore, based on a plain reading of the statute, subsection (3) permits an institution to refuse to confirm or deny the existence of a record for various categories listed under subsection (2), even without asserting harm, interference, or “compromise.”

Institutions considering whether to invoke subsection (3) should be aware of IPCO’s restrictive interpretation of this portion of the Law Enforcement exemption. While the statutory language sets out a seemingly straightforward standard, IPCO’s decisions indicate a preference for a stricter approach, and the Bulletin reinforces this position. Whether IPCO’s restrictive interpretation would withstand judicial review remains an open question. Notably, the only Orders cited in the Bulletin to support IPCO’s approach ruled in favor of the institutions in question, meaning there has been no apparent opportunity for judicial scrutiny.

“Exceptions to the Exemptions”

The Bulletin concludes with a discussion of subsections (4) and (5) of the Law Enforcement exemption, which outline specific circumstances where records must be disclosed despite the potential applicability of other exemptions. These provisions require institutions to release routine inspection reports and records that relate to the effectiveness of a law enforcement programs, helping to ensure a degree of transparency in law enforcement matters.

Remember, you don’t have to be a law enforcement agency to use the Law Enforcement exemption… or to use the FOI Assist software. The FOI Assist software is used by municipalities, educational institutions, police services, provincial agencies, and other government institutions across Ontario. Learn how FOI Assist can make your Freedom of Information program faster and more efficient, while increasing your compliance and helping you provide a better level of service to the public.

Contact Justin Petrillo at FOI Assist to learn more.

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