Office of the Information and Privacy Commissioner
Province of British Columbia
Order No. 39-1995
April 24, 1995
See Judicial Reviews page
INQUIRY RE: A Request for Access to Complaint Records held by the City of
Langley
Fourth Floor
1675 Douglas Street
Victoria, B.C. V8V 1X4
Telephone: 604-387-5629
Facsimile: 604-387-1696
1. Description of the review
As Information and Privacy Commissioner, I conducted an oral inquiry at the
Office of the Information and Privacy Commissioner in Victoria, British
Columbia on March 31, 1995 under section 56 of the Freedom of Information
and Protection of Privacy Act (the Act). This inquiry arose out of a
request by Esko Veli Holopanien (the applicant) for a review of a decision by
the City of Langley (Langley) to deny him access to the names and addresses of
eighteen people who signed a petition submitted to Langley City Council on May
30, 1994. The applicant requested the names on December 13, 1994. The City
denied his request under sections 19 and 22 of the Act.
On January 3, 1995, the applicant made a request to the Information and
Privacy Commissioner for a review of the decision to withhold the names and
addresses of the petitioners.
On March 20, 1995, the City of Langley advised the applicant and the Office of
the Information and Privacy Commissioner (the Office) that the information was
also being withheld under section 15 of the Act.
Mr. Colin Fortes, a Legal Information Counselor with the Langley Legal
Assistance Centre, appeared for the applicant. Rodrick H. McKenzie and Donald
J. Sutherland, Barristers and Solicitors with the firm of Thompson &
McConnell, appeared for the City of Langley. Mr. Frank Douglas Thomas, the
supervisor of by-law enforcement for the City, also appeared.
2. Documentation of the inquiry process
Under sections 56(3) and (4) of the Act, the Office gave notice of the inquiry
to the applicant and the City of Langley and invited them to make
submissions.
Under section 54(b) of the Act, the eighteen people who signed the petition
were also given notice and also invited to provide written representations.
These submissions were forwarded and received on an in camera basis,
both directly from the third parties and from the City of Langley.
The Office of the Information and Privacy Commissioner provided the applicant
and the public body with a three-page Portfolio Officer's fact report which,
after minor clarifications, the parties accepted as accurate for the purpose of
conducting the inquiry.
Under section 57(1) of the Act, the burden of proof is on the public body to
demonstrate that the applicant did not have a right of access to the names and
addresses under sections 15 and 19 of the Act.
Under section 57(2) of the Act, the burden of proof is on the applicant to
demonstrate that disclosure of the names and addresses would not be an
unreasonable invasion of the privacy of the third parties under section 22.
The applicant was given an opportunity to make a submission after the
conclusion of the inquiry concerning the City's argument under section 15(2)(b)
of the Act, and he did so on April 7, 1995. The City then prepared its own
response to this submission. I have carefully considered these and other
submissions and affidavits received in connection with this inquiry.
3. Issues under review at the inquiry
The issues under review at the inquiry are the applicability of sections
15(1)(a), 15(1)(c), 15(1)(d), 15(2)(b), 19(1)(a), 19(1)(b), 22(2)(e), 22(2)(f),
and 22(3)(b) of the Act to the records in dispute. These sections read in part
as follows:
Disclosure harmful to law enforcement
15(1) The head of a public body may refuse to disclose information to an
applicant if the disclosure could reasonably be expected to
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
Disclosure harmful to personal privacy [of third parties]
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
4. The records in dispute
The record in dispute is one page containing the names and addresses of
eighteen people who signed and submitted a petition to Langley City Council on
May 30, 1994 concerning Jane Doe of 54th Avenue in Langley.
5. The facts of the case
The applicant in the case is a resident of Langley, who described
himself as a friend of Jane Doe (who was also present with the applicant at the
oral inquiry). Neighbours of Jane Doe petitioned the City of Langley, because
they knew that she was applying for a temporary permit from the City. She was
requesting a temporary permit to live in a trailer on her property, after her
home had burned down. Eighteen nearby residents opposed the granting of a
permit and listed a number of concerns about the condition of her property. A
representative of the petitioners and Jane Doe addressed the Council meeting on
May 30, 1994. She was provided with a copy of the one-page complaint but not
the appended list of signatories. At a second Council meeting on June 27,
1994, Jane Doe received a three-month extension. Subsequently, there was
litigation on the matter in the Supreme Court of British Columbia.
6. The applicant's case
The applicant argued that disclosure of the names of the eighteen
petitioners would not be an unreasonable invasion of their privacy, since they
gave up their right to privacy when they signed the petition: "The very act of
signing a petition is to take a public stand on a certain issue and lend one's
support to that cause.... Petitions generally are not intended to be kept
secret." (Outline of Argument on Behalf of Applicant, pp. 2-4) In support of
this position, the applicant cited various decisions of the Ontario Information
and Privacy Commissioner and a section of the Freedom of Information and
Protection of Privacy Act Policy and Procedures Manual, prepared
by the Information and Privacy Branch of the Ministry of Government Services.
The applicant further rejected any claims that disclosure of the record in
dispute would expose the signatories unfairly to financial or other harm under
section 22 of the Act and that, furthermore, there is no evidence that the
personal information was supplied in confidence. In addition, the City Council
tabled the petition at a regular open Council meeting, as opposed to a special
one as permitted by section 220 of the Municipal Act. (Outline of
Argument on Behalf of Applicant, pp. 4-7)
The applicant further rejects any implication that Langley was conducting an
ongoing investigation into a possible violation of law by Jane Doe, or that
disclosure of the identities would harm an investigative technique or
procedure, since the method of petition is obviously well known in the
community. (Outline of Argument on Behalf of Applicant, pp. 7-9)
With respect to section 19 of the Act, the applicant and Jane Doe deny that
disclosure of the names of the petitioners will threaten their safety or mental
or physical health. Nor is there any known threat to public safety in a
community of 22,000. (Outline of Argument on Behalf of Applicant, pp. 9-11)
7. The City of Langley's case
One of Langley's key arguments is that it was engaged in by-law
enforcement in connection with Jane Doe's property and that the informants
whose identities are being sought provided the City with needed information
that it had requested. Both parties made presentations to City Council on May
30, 1994. Jane Doe appeared again on June 27, 1994, at which time the City
granted her a grace period under certain conditions. The Supreme Court of
British Columbia confirmed her violation of the zoning bylaw on February 7,
1995 and ordered her to remove herself and her trailer from her property.
(City's Argument, p. 1) According to an affidavit from the mayor of Langley,
this action was required because she refused to relocate at the end of her
three-month grace period; the City had to bring an action in Supreme Court to
enforce the zoning bylaw. (Exhibit 1, paragraph 11)
The City's policy is to require identification of informants before written
complaints of violations are acted upon, but it does not release these
identities without consent. Because of the informants' expressed concerns for
their personal safety, the mayor and city administrator permitted this
complaint to be in writing. (City's Argument, pp. 1-2)
The City's "primary consideration is the fact that this information was
provided by informants respecting a law enforcement matter on the City's
assurance of confidentiality." The City was involved in what is now "a fully
completed law enforcement procedure." (City's Argument, p. 4 and oral
argument) The City added that "the sole basis for the City's involvement in
this matter is law enforcement. All steps taken by the City with respect to
the issues raised by the informants were related to law enforcement matters
only." (City's Argument, p. 6) Thus the City argues that disclosure in this
case would harm law enforcement under section 15 of the Act: "This law
enforcement matter commenced as the reporting of offences and evolved into an
issue of enforcement," including a mandatory injunction from the Supreme Court.
(City's Argument, p. 10)
The City is of the opinion that the information in dispute is personal
information, that its disclosure would be an unreasonable invasion of the
personal privacy of the informants under section 22 of the Act, and that the
applicant has failed to meet his burden of proof under section 57(2). (City's
Argument, pp. 5-6)
The City argued under section 22(2)(f) that the information in dispute was
supplied in confidence. An affidavit from the mayor of Langley states that a
representative of the informant group made verbal representations to her in
advance of the May 30, 1994 meeting. She explained that if a letter were
submitted, "all names and addresses attached to the letter would remain
confidential." Only the "substantive contents" of the letter would be released
to Jane Doe. (Exhibit 1, paragraphs 5
and 6)
The administrator of Langley, that is its senior bureaucrat, explained its
policy on requiring identification of all informants to the City. The purpose
is to minimize "the occurrence of vexatious, frivolous or fabricated
allegations. The City's experience has been that the occurrence of such
improper allegations is reduced if informant identity is required." (Exhibit
14, paragraph 2) However, informants are also promised confidentiality for
their identities:
Information confidentiality has three purposes. First, it is intended to
provide neighbors with a method of ensuring that the law is enforced with
minimal disruption to community or neighborly relations. Second, it is
intended to protect informants' health and safety where neighborly relations
have or may deteriorate to a hostile state. Finally, due to the chilling
effects that the required provision of informant identity has on informants, by
eliminating the fear of reprisal, confidentiality has the intended purpose of
encouraging legitimate complaints to be brought forward. (Exhibit 14,
paragraph 5)
Because of the limited resources available for bylaw enforcement, the City
relies heavily on information provided by informants "for the effective
investigation and enforcement of the City's Bylaws." It also will not enforce
a bylaw without a victim (an "aggrieved party") who has suffered harm.
However, if the evidence of an informant is required for a prosecution, the
City will not proceed if consent cannot be obtained. (Exhibit 14, paragraphs
6-8)
With respect to section 19 of the Act, the City Administrator heard from two
signatories before the May 30, 1994 meeting to the effect that all of the
signatories "were afraid of reprisals they might suffer at the hands of Jane
Doe if their identities were revealed." He gave them oral assurances that all
names and addresses attached to an informing letter would remain confidential:
"It has been the City's practice to maintain confidentiality regarding these or
other matters where safety or practical concerns are raised regarding the
disclosure of individuals' identities." (Exhibit 14, paragraphs 9-10)
Under section 19(1)(a) and (b) of the Act, the City argues that the risk of
harm to anyone's safety or mental or physical health from disclosure of the
contested information only needs to be reasonable and that it has met this
standard by means of the videotape of Jane Doe at the Council meeting on June
27, 1994 and the in camera affidavits submitted by signatories. (City's
Argument, pp. 9-10; Exhibit 19)
8. Discussion
Section 15: Law Enforcement
I accept the various arguments of Langley to the effect that bylaw enforcement
is generally a "law enforcement matter" under section 15(1)(a) of the Act, and
that it indeed did become law enforcement in the present case because of the
necessity to petition for a Supreme Court injunction under sections 750 and 751
of the Municipal Act.
In my recent decision, Order No. 36-1995, March 31, 1995, concerning events on
Saturna Island, I established the following test:
In order to characterize information as resulting from a law enforcement
action, a public body must establish it had a law enforcement mandate. I find
support for this proposition in Ministry of Attorney General, Ontario
Information and Privacy Commissioner, Order P-416, February 23, 1993, p.5 (Tom
Mitchinson, Assistant Commissioner). The definition of law enforcement in
British Columbia requires, in my view, that a public body have specific
statutory authority to conduct the investigation and to impose sanctions or
penalties.
I am satisfied that the City of Langley has such responsibilities under
the Municipal Act.
I accept that disclosure of the record in dispute in this case "could
reasonably be expected to (a) harm a law enforcement matter," in the sense that
municipalities with by-law enforcement procedures similar to those of Langley
would have difficulty collecting information relevant to by-law enforcement, if
they could not promise anonymity to complainants, as Langley did in the present
case.
However, I do not accept that revealing the identities at issue in this
inquiry would "harm the effectiveness of investigative techniques and
procedures currently used," as defined by section 15(1)(c) of the Act. (See
City's Argument, pp. 10-13) The "technique" that the City is referring to is
eighteen members of the community collectively voicing their concerns to the
Mayor and Council. The substance of those concerns were discussed in an open
council meeting. Public bodies cannot use this exception to withhold records
under section 15(1)(c) for commonly-known investigative techniques. I intend
to interpret section 15(1)(c) narrowly in this review.
The City argues that residents will not come forward with by-law complaints if
confidentiality cannot be promised in order to ensure their personal safety;
this would be harmful to the quality of community life. In the present case,
the petition to the Supreme Court went forward on the basis of evidence
collected by the bylaw enforcement officer, and there was no need to reveal the
identities of the informants. (Oral argument)
Finally, I do accept that in this case disclosure of the identities of the
neighbours would be contrary to the intent of section 15(1)(d) of the Act.
According to the City, Mayor Grinnell solicited this petition for
"consideration by Council" and assured confidentiality to the group. I am
satisfied that this makes the group "a confidential source of law enforcement
information." The petition was to assist Council in making its decision with
respect to Jane Doe's application for a temporary permit. The City advised
Jane Doe that failure to adhere to the bylaws would result in "legal action
being taken against her." The issue under consideration on May 30, 1994 was
whether to enforce the bylaws immediately or after any grace period granted.
(Affidavit of Marlene Grinnell) Jane Doe was subsequently granted a
three-month grace period.
Section 22: Harm to Personal Privacy
I agree that the names and addresses provided by the complainants are personal
information under section 22 of the Act. I also accept that the personal
information was supplied in confidence under section 22(2)(f).
The bylaw enforcement guidelines of Langley, effective August 30, 1982, do
require that enforcement action with regard to its bylaws should only be
entertained where there exists a clearly identified complainant. (Exhibit 14,
Exhibit A; City's Argument, p. 13) But the written policy does not stipulate
the circumstances under which the identities of complainants will be kept
confidential. It is my view that the policies of municipalities that follow
the practices of Langley should now be in written form in order to comply with
section 22(2)(f) of the Freedom of Information and Protection of Privacy
Act.
Section 19: Harm to an Individual or Public Safety
The notice to third parties in this inquiry invited them to submit in
camera affidavits to me with a copy to the City of Langley. The latter
submitted 8 affidavits to me, which I accepted on an in camera basis in
accordance with my customary procedures (Exhibits 3 to 10). Three of these
affidavits only reached me via the City, although in 2 cases this statement
only covers the affidavit, since I had received the substantive letter
directly. (Exhibits 6, 9, and 10) I received submissions directly from 8
third parties in the inquiry, including 3 that I did not receive from the City.
The copies of letters conveyed by the City included sworn affidavits from the
signatories of these letters. Each referred to their expectations of
confidentiality for both their initial submission to Langley Council and their
present communication to this inquiry and their negative experience with Jane
Doe.
The affidavits uniformly refer to the direct or observed experiences of verbal
abuse and threats from Jane Doe, past, present, and future. The affidavits
also refer to the writer's fears of verbal abuse, threats, and physical harm
that might happen to them, their families, or residents of their homes, if
their identities are revealed to Jane Doe. (Exhibits 3 to 10) In addition,
there are allegations of vandalism having occurred.
I have reviewed each of the submissions and affidavits received from third
parties and conclude, without hesitation, that the writers have presented
detailed and convincing evidence which demonstrates that they have sufficient
reason from their past experiences with Jane Doe to have legitimate reasons to
fear for their safety or mental or physical health, if their identities are
disclosed to the applicant in this case. The testimony does not paint an
attractive picture of life as one of Jane Doe's neighbours and contradicts her
own testimony at this inquiry that she would not "harm" her neighbours and has
not "threatened" them in the past.
Counsel for the applicant himself argued that there is no evidence that he
would cause harm to the signatories of the complaint to City Council. However,
I conclude that disclosure of identities to any applicant for them, never mind
a friend of Jane Doe, would have the undesirable result of subjecting the
informants to the risk of harm to their safety.
It is my judgment that the public body has thus met the standard of proof
required under section 19(1) of the Act. This is in accordance with the
standards that I have established in my previous decisions. See Order No.
7-1994, April 11, 1994, pp. 4-6. As I said in Order No. 28-1994, November 8,
1994, page 8: "I intend to act prudently with respect to possible violence and
hostile behaviour following disclosures of information under the Act ...
[Therefore,] the standard of proof [of a threat of harm] is a balance of
probabilities. Further, I do not require that the proof of violence be actual
as opposed to potential."
I agree that the head of the public body may refuse to disclose the record in
dispute to the applicant under section 19(1) of the Act.
9. Order
Under section 58(2)(b) of the Act, I find that the City of Langley was
authorized to refuse to disclose the information in dispute. Therefore, I
confirm the decision of the public body not to disclose the record in dispute
to the applicant.
April 24, 1995
David H. Flaherty
Commissioner