INVESTIGATION REPORT
INVESTIGATION P97-010
Report on an investigation by
the Office of the Information and Privacy Commissioner
into a complaint regarding a disclosure of Personal information
by the Vancouver Police Department
June 16, 1997
David H. Flaherty
Information and Privacy Commissioner
of British Columbia
4th floor, 1675 Douglas Street
Victoria, British Columbia V8V 1X4
tel.: (250) 387-5629
fax: (250) 387-1696
Web site: http://www.oipc.bc.ca
Table of Contents
Executive Summary
A. Introduction
B. The Complaint
C. The Landlord's Freedom of Information (FOI) Request
D. The Vancouver Police Department's Response to the FOI Request
E. The Vancouver Police Department's Position on the disclosure of the information
F. Did the Vancouver Police Department disclose personal information?
G. Did the disclosure of Ms X's personal information constitute an unreasonable invasion of her privacy?
H. Should the Vancouver Police Department have notified Ms X under
sections 23 and 24 of the Act?
I. Conclusion
Appendix 1
EXECUTIVE SUMMARY
The Office of the Information and Privacy Commissioner (the Office)
received a complaint from a woman that the Vancouver Police Department had
violated her privacy by disclosing to her landlord, in response to his freedom
of information request, records containing details of her 911 calls to the
police for help .
The landlord requested a listing of incidents at the address of his tenant,
whom he also named in his request. The Vancouver Police Department disclosed
six printouts of Computer Aided Dispatch (CAD) calls, from which the
complainant's name was removed. The records did, however, contain details of
the incidents themselves, including numerous references to the woman's suicidal
tendencies and behaviour.
After investigating the circumstances of the complaint, the Office concluded
that the Vancouver Police Department had disclosed the complainant's personal
information and that the disclosure constituted an unreasonable invasion of the
complainant's privacy under section 22(1) of the Freedom of Information and
Protection of Privacy Act (the Act). The Office also concluded that, under sections 23 and
24 of the Act, the Vancouver Police Department should have
notified the woman that it intended to disclose records containing her personal
information, in order to afford her the opportunity to request a review of that
decision by the Office.
The Vancouver Police Department accepted the Office's findings and agreed to
work with the Office in:
· revising its policies and procedures for the treatment of Freedom of
Information requests for the personal information of named third parties to
ensure the appropriate application of section 22; and
· notifying third parties under sections 23 and 24 of the Act, where it
intends to disclose records that contain personal information about those third
parties that might be excepted from disclosure under section 22 of the Act.
A. Introduction
The Office of the Information and Privacy Commissioner (the Office) has the
authority under section 42 of the Freedom of Information and Protection of
Privacy Act (the Act) to receive and investigate complaints that a public
body has disclosed personal information in contravention of Part 3 of the Act.
In November 1996, the Office received a complaint from a woman, Ms X, that, in
response to a freedom of information (FOI) request, the Vancouver Police
Department had disclosed her personal information to her landlord, Mr.Y, in
contravention of section 22 of the Act.
The Office reviewed the complaint, the landlord's FOI request, the Vancouver
Police Department's response, and the severed and unsevered records. The
Office also requested the Vancouver Police Department's written rationale for
disclosing the records and for general information on the Vancouver Police
Department's treatment of FOI requests for records of 911 emergency calls. The
Office then analyzed these items and provided its initial findings and
recommendations to the Vancouver Police Department.
The Vancouver Police Department has agreed to revise its procedures and
practices with respect to the release of personal information as described in
this report and to work closely with this Office for that purpose.
(The sections of the Act cited in this report are reproduced in the
appendix.)
B. The Complaint
The complainant, Ms X, is represented by a paralegal who wrote to the Office on
her client's behalf. The main body of the complaint is cited below:
I am assisting my client in a landlord/tenant dispute in which the landlord
seeks her eviction. The landlord served my office with copies of computer
printouts from the Vancouver City Police (copies are enclosed for your
reference), which the landlord intends to rely on at the eviction hearing. I
have reviewed and discussed these documents with my client. My client is
greatly concerned that such private and privileged information about her was
released to the landlord by the Vancouver City Police through a Freedom of
Information Request. The information released was of a personal nature and not
related in anyway to the tenancy itself. The information was released without
any prior contact or consent from my client. She feels the release of this
information constitutes an infringement of her rights under S.22 of the FIPPA
and an infringement of her rights under Section 7 of the Canadian Charter of
Rights and Freedom.
The Freedom of Information and Privacy Protection Act states:
22. (1) The head of a public body must refuse to disclose personal information
to an applicant if the disclosure would be an unreasonable invasion of a third
party's personal privacy.
(2) In determining under subsection (1) or (3) whether a disclosure of
personal information constitutes an unreasonable invasion of a third party's
personal privacy, the head of a public body must consider all the relevant
circumstances, including whether
(f) the personal information has been supplied in confidence,
The information that was released to the landlord relates to my client's
medical, psychiatric or psychological history. Specifically, it records
information collected through calls made to 911 for suicide assistance.
It is my position that when a person calls 911 and seeks assistance the call,
and any information supplied during the conversation with a 911 operator is in
the strictest confidence.
The police have released this information to the client's landlord. It is my
position that the landlord has no legitimate third party interest in this
information as it does not pertain to activity that threatens the landlord's
property or interest in the property.
Section 19(1)(a) and (b) of the Freedom of Information Privacy Protection
Act further states:
19. (1) The head of a public body may refuse to disclose to an applicant
information, including personal information about the applicant, if the
disclosure could reasonably be expected to
(b) interfere with public safety.
It is my position that if confidential calls for help to 911 are accessible to
third parties, as has happened in this instance, it will seriously undermine
the public's confidence in reaching out for emergency assistance for fear of a
breach of personal privacy. This alone constitutes a serious threat to "the
safety, mental or physical health of an individual or interferes with public
safety." There is the added personal trauma suffered by individuals, including
my client when such personal information relating to "medical, psychiatric or
psychological history" is made available without consideration of the party's
personal privacy.
I submit that before releasing the information the Vancouver City Police had a
duty pursuant to Section 22(4)(a) and 23(1)(1.2) and (2) [now 23(1), (2) and
(3)] to notify my client and give her an opportunity to make representations
concerning the disclosure of this information.
Yours truly,
[paralegal's signature]
C. The Landlord's Freedom of Information (FOI) Request
The landlord's FOI request was addressed to the Vancouver Police
Department's information and privacy office. The text of letter is reproduced
below, with personal identifiers removed:
25th September, 1996
Dear Sirs:
Re: Tenant: [Ms X]
Premises: [Ms X's apartment number and street address]
I am the landlord for the above mentioned apartment. According to the
information other tenant in this building, [Ms X] always got drunk or maybe
even take drugs in the above premises, Police and ambulance had come many
times due to these reasons. There was an incident (your file # 96-[xxxxxx])
happened on September 6, 1996 at 7.45 PM, Constable [Z] from District [x] --
Team [x] in some reason had to break in to above premises again. As this
happened quite often and had disturbed my other tenant, I do hope you can help
me by listing all the incidents happened in the above premises caused by [Ms.
X] so I can take further action due to her misbehavior.
If you required any further assistance, please contact me by phone no
[xxx-xxxx] or my cellular [xxx-xxxx]. Thanks.
Best Regards
[X] Holdings Ltd.
[Mr Y]
D. The Vancouver Police Department's Response to the FOI Request
The Vancouver Police Department responded to the landlord's request as follows:
"Please find enclosed copies of computer generated printouts of the calls to
the address referred to in your request concerning the current tenant." The
records consisted of computer printouts of five incident reports flowing from
Ms X's 911 own calls to the Vancouver Police Department from her home: one
report with the incident number cited by the landlord and four others. The
Vancouver Police Department also released a sixth printout relating to an
incident which took place at a hospital.
Under section 22(3)(b) of the Act, the Vancouver Police Department withheld Ms
X's name and telephone number wherever they occurred on the six printouts. On
the sixth report, the Vancouver Police Department also withheld details of a
call from staff at the psychiatric ward at a major Vancouver hospital.
The Vancouver Police Department released the rest of the information on the six
incident reports. The released details included the times and dates of the
incidents, the names of the officers who attended the calls, coded references
to the types of calls, the officers' actions, and other routine items.
The Vancouver Police Department also disclosed the tenant's address and other
details of the incidents, including:
· "EHS en route for a possible overdose"
· "party attempted suicide"
· "37 year old female who had attempted suicide in past, can be violent
and belligerent"
· several other references to the caller's suicidal tendencies, such as
"female had slit her wrist and passed out ..." and "said she was committing
suicide but wouldn't say if .... she had taken pills"
· "section 24'd enroute to [a hospital]"
· "party can become extremely violent without warning ... may try to jump
out window ... hides knives ... EHS advised as well"
· "did admit to drinking vodka"
E. The Vancouver Police Department's position on the disclosure of the
information
The Vancouver Police Department's original position in this investigation was
that "no personal information was released in our reply to this request." The
Office requested further details on this argument and the Vancouver Police
Department responded that "it remains our position that no personal information
was released in this case. The information released to the applicant contains
information about our attendance at the calls in question and the resolution of
the calls by the attending officers."
The Office also asked for general information on the Vancouver Police
Department's policies for treating FOI requests for access to computer
printouts of incident reports of 911 calls by third parties. We asked if the
Vancouver Police Department treated all applicants' requests for 911 records in
the same way or if the landlord had received different treatment in his
capacity as the landlord.
The Vancouver Police Department responded that it did not treat Mr Y's request
differently from other requests for records related to third parties. It said:
"Generally, any third party requesting another person's personal information in
a CAD [computer-aided dispatch] printout would receive severed copies of the
records indicating the fact of our attendance at a call, the substantive
information about the call etc. The personal information of other people would
routinely be removed, as was done in this case. The landlord's status as owner
of the building did not have any bearing on our application of the legislation
to the requested records"
Finally, the Office asked the Vancouver Police Department if it had considered
issuing a notification to Ms X as a third party under section 23 of the Act.
The Vancouver Police Department informed us that it did not consult the tenant
under sections 23 and 24 of the Act, since it did not consider that it would be
disclosing personal information in response to the landlord's request.
F. Did the Vancouver Police Department disclose personal information?
The Act defines personal information as "recorded information about an
identifiable individual." The information on the incident reports can be
linked directly to Ms X as an identifiable individual as follows (italics
ours):
· the landlord specifically requested records about his tenant by
name, "Ms X"; he also provided her address by apartment and street
number
· in response to the request for records about calls to Ms X, the public
body searched its records and retrieved six incident reports
· the Vancouver Police Department severed Ms X's name and telephone number
but released her address, along with the other references outlined in
Section D. above
· in its response letter, the Vancouver Police Department informed the
landlord that it was providing access to records of calls to the address given
by the landlord in his request, "concerning the current tenant"
· even though Ms X's name had been removed, the landlord had no difficulty
linking the records he had received, and the personal information therein,
directly to his tenant; as we know from the complaint letter, he also attempted
to use the records in a tenancy dispute with Ms X
· Ms X had no doubt that the landlord had obtained records about her 911
calls to the Vancouver Police Department and that the information in the
records pertained to her
The Office concludes that there was an obvious and direct connection between
the details of the incidents, as released in the records, and Ms X, who was
specifically named as the subject of the landlord's request for records. With
an obvious link between the subject of the request and the information in the
records, the Vancouver Police Department clearly released records containing Ms
X's personal information. It now recognizes that fact.
G. Did the disclosure of Ms X's personal information constitute an
unreasonable invasion of her privacy?
The landlord requested a listing of incidents at the tenant's address,
which the Office interprets as being a request for a list of dates on which the
police attended at the tenant's address. The Vancouver Police Department did
not dispute this interpretation and informed the Office that no such record
exists. The Vancouver Police Department stated that it aimed to assist the
landlord under section 6 of the Act by providing copies of the severed computer
printouts as the records which most closely matched Mr Y's request.
Such a list of incidents (if it existed) would reveal the number of times the
tenant (or someone else in her apartment) had called for emergency police
assistance. The Office regards a list of 911 incidents at a particular address
as personal information meriting protection under the Act, since it reveals
sensitive details about the number of times a caller has, in confidence, sought
emergency assistance from the police.
Thus, even in response to a request for a list (other than from a person
concerned in the incidents), the Office would expect a public body to protect
the information under section 22(1) of the Act, stipulating that 22(3)(a) of
the Act applies. Section 22(3)(b) might also apply in some circumstances,
although not necessarily in this case.
Alternatively, a public body might invoke section 8(2)(b) of the Act and refuse
to confirm or deny the existence of any information, other than perhaps an
acknowledgment of an incident that an applicant already knew about, as in this
case.
In this case, as noted above, there was no list of incidents, and it would have
been a simple matter to inform the landlord that no record existed. The Office
finds no justification for substituting a set of printouts containing
significant amounts of sensitive personal information about the subject of the
request.
The Office rejected the Vancouver Police Department's original view that
providing the severed printouts constituted assistance to the landlord under section 6 of the Act. Rather, the Office concludes that the Vancouver Police
Department's response was broadened inappropriately. The Office views the
disclosure of the incident reports themselves to have resulted in an
unreasonable invasion of Ms X's privacy. They contained sensitive medical and
other personal information directly attributable to Ms X, which the Vancouver
Police Department should have protected under section 22(1) of the Act.
Moreover, the Vancouver Police Department did not distinguish between requests
in which the subject of the personal information is named (as is the case with
Mr Y's request) and those phrased in a more general way, for example, "I
request records showing the types of 911 calls the police receive." In the
latter case, it might be acceptable to disclose records which included
statements such as those listed in Section D. above, although any personal
identifiers would still have to be severed. In a case like the present one,
however, where the subject of the request is specified and the released records
concern that person, such a practice is very invasive of the subject's
privacy.
H. Should the Vancouver Police Department have notified Ms X under sections 23 and
24 of the Act?
The Office strongly advocates the principle that individuals should have as
much control as possible over the collection and dissemination of their own
personal information. The Act acknowledges this principle by incorporating a
mechanism by which public bodies can take into account the views of third
parties when processing FOI requests.
Sections 23 and 24 of the Act are the vehicle for this consultative process.
These sections require public bodies to notify individuals and obtain their
representations, where the public bodies intend to give access to a record that
they have reason to believe contains information that might be excepted from
disclosure under section 22 of the Act. As discussed above, however, the
Vancouver Police Department did not believe that it would be disclosing Ms X's
personal information and therefore did not consider notifying her under section 23 of the Act.
Our strong preference would have been for the Vancouver Police Department not
to have acknowledged the existence of records related to Ms X's 911 calls
(section 8(2)(b)). As Ms X's paralegal pointed out, people make 911 calls
under the assumption that the information they provide will be kept in
confidence. In Ms X's case, the information in the 911 calls was of a
particularly sensitive psychiatric and medical nature.
At the very least, the Office considers that the Vancouver Police Department
should have notified Ms X under sections 23 and 24 of the Act and given her the
opportunity to make representations. She would then have been able to exercise
her right as a third party to request a review by the Office of the Vancouver
Police Department's decision to disclose her personal information.
I. Conclusion
As the Information and Privacy Commissioner, I have the authority to determine
if a public body has correctly interpreted and applied the Freedom of
Information and Protection of Privacy Act and to decide if the Vancouver
Police Department has contravened the Act.
I conclude that by disclosing records of Ms X's 911 emergency calls, the
Vancouver Police Department did not comply with the Act. As a result of the
Vancouver Police Department's actions, there has been an unreasonable invasion
of Ms X's privacy.
However, the Vancouver Police Department has agreed to work to prevent a
recurrence of this incident by:
· revising its policies and procedures for the treatment of Freedom of
Information requests for the personal information of named third parties to
ensure the appropriate application of section 22; and
· notifying third parties under sections 23 and 24 of the Act, where it
intends to disclose records that contain personal information about those third
parties that might be excepted from disclosure under section 22 of the Act.
June 16, 1997
David H. Flaherty
Commissioner
Investigation Conducted by Celia Francis
Investigation Report Written by Celia Francis
APPENDIX 1
Duty to assist applicants
6. (1) The head of a public body must make every reasonable effort to assist
applicants and to respond without delay to each applicant openly, accurately
and completely.
(2) Moreover, the head of a public body must create a record for an applicant
if
(a) the record can be created from a machine readable record in the custody
or under the control of the public body using its normal computer hardware and
software and technical expertise, and
(b) creating the record would not unreasonably interfere with the operations
of the public body.
Contents of response
8. (1) In a response under section 7, the head of the public body must tell the
applicant
(a) whether or not the applicant is entitled to access to the record or to
part of the record,
(b) if the applicant is entitled to access, where, when and how access will
be given, and
(c) if access to the record or to part of the record is refused,
(i) the reasons for the refusal and the provision of this Act on which the
refusal is based,
(ii) the name, title, business address and business telephone number of an
officer or employee of the public body who can answer the applicant's questions
about the refusal, and
(iii) that the applicant may ask for a review under section 53 or 63.
(2) Despite subsection (1)(c)(i), the head of a public body may refuse in a
response to confirm or deny the existence of
(a) a record containing information described in section 15 (information
harmful to law enforcement), or
(b) a record containing personal information of a third party if disclosure
of the existence of the information would be an unreasonable invasion of that
party's personal privacy.
Disclosure harmful to individual or public safety
19. (1) The head of a public body may refuse to disclose to an applicant
information, including personal information about the applicant, if the
disclosure could reasonably be expected to
(a) threaten anyone else's safety or mental or physical health, or
(b) interfere with public safety.
(2) The head of a public body may refuse to disclose to an applicant personal
information about the applicant if the disclosure could reasonably be expected
to result in immediate and grave harm to the applicant's safety or mental or
physical health.
Disclosure harmful to personal privacy
22. (1) The head of a public body must refuse to disclose personal information
to an applicant if the disclosure would be an unreasonable invasion of a third
party's personal privacy.
(2) In determining under subsection (1) or (3) whether a disclosure of
personal information constitutes an unreasonable invasion of a third party's
personal privacy, the head of a public body must consider all the relevant
circumstances, including whether
(a) the disclosure is desirable for the purpose of subjecting the activities
of the government of British Columbia or a public body to public scrutiny,
(b) the disclosure is likely to promote public health and safety or to
promote the protection of the environment,
(c) the personal information is relevant to a fair determination of the
applicant's rights,
(d) the disclosure will assist in researching or validating the claims,
disputes or grievances of aboriginal people,
(e) the third party will be exposed unfairly to financial or other harm,
(f) the personal information has been supplied in confidence,
(g) the personal information is likely to be inaccurate or unreliable, and
(h) the disclosure may unfairly damage the reputation of any person referred
to in the record requested by the applicant.
(3) A disclosure of personal information is presumed to be an unreasonable
invasion of a third party's personal privacy if
(a) the personal information relates to a medical, psychiatric or
psychological history, diagnosis, condition, treatment or evaluation,
(b) the personal information was compiled and is identifiable as part of an
investigation into a possible violation of law, except to the extent that
disclosure is necessary to prosecute the violation or to continue the
investigation,
(c) the personal information relates to eligibility for income assistance or
social service benefits or to the determination of benefit levels,
(d) the personal information relates to employment, occupational or
educational history,
(e) the personal information was obtained on a tax return or gathered for the
purpose of collecting a tax,
(f) the personal information describes the third party's finances, income,
assets, liabilities, net worth, bank balances, financial history or activities,
or creditworthiness,
(g) the personal information consists of personal recommendations or
evaluations, character references or personnel evaluations about the third
party,
(h) the disclosure could reasonably be expected to reveal that the third
party supplied, in confidence, a personal recommendation or evaluation,
character reference or personnel evaluation,
(i) the personal information indicates the third party's racial or ethnic
origin, sexual orientation or religious or political beliefs or associations,
or
(j) the personal information consists of the third party's name, address or
telephone number and is to be used for mailing lists or solicitations by
telephone or other means.
(4) A disclosure of personal information is not an unreasonable invasion of a
third party's personal privacy if
(a) the third party has, in writing, consented to or requested the
disclosure,
(b) there are compelling circumstances affecting anyone's health or safety
and notice of disclosure is mailed to the last known address of the third
party,
(c) an enactment of British Columbia or Canada authorizes the disclosure,
(d) the disclosure is for a research or statistical purpose and is in
accordance with section 35,
(e) the information is about the third party's position, functions or
remuneration as an officer, employee or member of a public body or as a member
of a minister's staff,
(f) the disclosure reveals financial and other details of a contract to
supply goods or services to a public body,
(g) public access to the information is provided under the Financial
Information Act,
(h) the information is about expenses incurred by the third party while
travelling at the expense of a public body,
(i) the disclosure reveals details of a licence, permit or other similar
discretionary benefit granted to the third party by a public body, not
including personal information supplied in support of the application for the
benefit, or
(j) the disclosure reveals details of a discretionary benefit of a financial
nature granted to the third party by a public body, not including personal
information that is supplied in support of the application for the benefit or
is referred to in subsection (3)(c).
(5) On refusing, under this section, to disclose personal information supplied
in confidence about an applicant, the head of the public body must give the
applicant a summary of the information unless the summary cannot be prepared
without disclosing the identity of a third party who supplied the personal
information.
(6) The head of the public body may allow the third party to prepare the
summary of personal information under subsection (5).
Notifying the third party
23. (1) If the head of a public body intends to give access to a record that
the head has reason to believe contains information that might be excepted from
disclosure under section 21 or 22, the head must give the third party a written
notice under subsection (3).
(2) If the head of a public body does not intend to give access to a record
that contains information excepted from disclosure under section 21 or 22, the
head may give the third party a written notice under subsection (3).
(3) The notice must
(a) state that a request has been made by an applicant for access to a record
containing information the disclosure of which may affect the interests or
invade the personal privacy of the third party,
(b) describe the contents of the record, and
(c) state that, within 20 days after the notice is given, the third party
may, in writing, consent to the disclosure or may make written representations
to the public body explaining why the information should not be disclosed.
(4) When notice is given under subsection (1), the head of the public body
must also give the applicant a notice stating that
(a) the record requested by the applicant contains information the disclosure
of which may affect the interests or invade the personal privacy of a third
party,
(b) the third party is being given an opportunity to make representations
concerning disclosure, and
(c) a decision will be made within 30 days about whether or not to give the
applicant access to the record.
Time limit and notice of decision
24. (1) Within 30 days after notice is given under section 23(1) or (2), the
head of the public body must decide whether or not to give access to the record
or to part of the record, but no decision may be made before the earlier of
(a) 21 days after the day notice is given, or
(b) the day a response is received from the third party.
(2) On reaching a decision under subsection (1), the head of the public body
must give written notice of the decision to
(a) the applicant, and
(b) the third party.
(3) If the head of the public body decides to give access to the record or to
part of the record, the notice must state that the applicant will be given
access unless the third party asks for a review under section 53 or 63 within
20 days after the day notice is given under subsection (2).